    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                         FOOD WASTE FROM FIELD TO TABLE

    =======================================================================

                                    HEARING

                                   BEFORE THE

                            COMMITTEE ON AGRICULTURE
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 25, 2016

                                   __________

                               Serial No. 114-52

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Printed for the use of the Committee on Agriculture
                             agriculture.house.gov

                                      ______

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                            COMMITTEE ON AGRICULTURE

                      K. MICHAEL CONAWAY, Texas, Chairman

    RANDY NEUGEBAUER, Texas,             COLLIN C. PETERSON, Minnesota,
        Vice Chairman                    Ranking Minority Member
    BOB GOODLATTE, Virginia              DAVID SCOTT, Georgia
    FRANK D. LUCAS, Oklahoma             JIM COSTA, California
    STEVE KING, Iowa                     TIMOTHY J. WALZ, Minnesota
    MIKE ROGERS, Alabama                 MARCIA L. FUDGE, Ohio
    GLENN THOMPSON, Pennsylvania         JAMES P. McGOVERN, Massachusetts
    BOB GIBBS, Ohio                      SUZAN K. DelBENE, Washington
    AUSTIN SCOTT, Georgia                FILEMON VELA, Texas
    ERIC A. ``RICK'' CRAWFORD, Arkansas  MICHELLE LUJAN GRISHAM, New Mexico
    SCOTT DesJARLAIS, Tennessee          ANN M. KUSTER, New Hampshire
    CHRISTOPHER P. GIBSON, New York      RICHARD M. NOLAN, Minnesota
    VICKY HARTZLER, Missouri             CHERI BUSTOS, Illinois
    DAN BENISHEK, Michigan               SEAN PATRICK MALONEY, New York
    JEFF DENHAM, California              ANN KIRKPATRICK, Arizona
    DOUG LaMALFA, California             PETE AGUILAR, California
    RODNEY DAVIS, Illinois               STACEY E. PLASKETT, Virgin Islands
    TED S. YOHO, Florida                 ALMA S. ADAMS, North Carolina
    JACKIE WALORSKI, Indiana             GWEN GRAHAM, Florida
    RICK W. ALLEN, Georgia               BRAD ASHFORD, Nebraska
    MIKE BOST, Illinois
    DAVID ROUZER, North Carolina
    RALPH LEE ABRAHAM, Louisiana
    JOHN R. MOOLENAAR, Michigan
    DAN NEWHOUSE, Washington
    TRENT KELLY, Mississippi

                                     ______

                        Scott C. Graves, Staff Director

                    Robert L. Larew, Minority Staff Director

                                      (ii)

                                 C O N T E N T S

                                  ----------
                                                                       Page
    Conaway, Hon. K. Michael, a Representative in Congress from
      Texas, opening statement.......................................     1
        Prepared statement...........................................     3
    Peterson, Hon. Collin C., a Representative in Congress from
      Minnesota, opening statement...................................     6

                                   Witnesses

    Pingree, Hon. Chellie, a Representative in Congress from Maine...     7
        Prepared statement...........................................     9
    Gunders, Dana, Senior Scientist, Food and Agriculture Program,
      Natural Resources Defense Council, San Francisco, CA...........    10
        Prepared statement...........................................    12
    Fink, Jesse M., Managing Director, MissionPoint Partners LLC,
      Norwalk, CT; on behalf of ReFED: Rethink Food Waste Through
      Economics and Data.............................................    17
        Prepared statement...........................................    19
    Oxford, John, President and Chief Executive Officer, L&M
      Companies; Chairman-elect, Produce Marketing Association,
      Raleigh, NC....................................................    33
        Prepared statement...........................................    35
    Stasz, Meghan B., Senior Director, Sustainability, Grocery
      Manufacturers Association, Washington, D.C.; on behalf of Food
      Waste Reduction Alliance.......................................    41
        Prepared statement...........................................    43
    Aviv, Diana, Chief Executive Officer, Feeding America, Chicago,
      IL.............................................................    48
        Prepared statement...........................................    50
    Broad Leib, J.D., Emily M., Assistant Clinical Professor of Law
      and Director, Food Law and Policy Clinic, Harvard Law School,
      Jamaica Plain, MA..............................................    54
        Prepared statement...........................................    56
        Submitted question...........................................   156

                               Submitted Material

    Budway, Robert, President, Can Manufacturers Institute, submitted
      letter.........................................................   153
    Vroom, Jay, President and Chief Executive Officer, CropLife
      America, submitted statement...................................   154

                         FOOD WASTE FROM FIELD TO TABLE

                                  ----------

                            WEDNESDAY, MAY 25, 2016

                              House of Representatives,
                                      Committee on Agriculture,
                                                       Washington, D.C.
        The Committee met, pursuant to call, at 10:00 a.m., in Room
    1300 of the Longworth House Office Building, Hon. K. Michael
    Conaway [Chairman of the Committee] presiding.
        Members present: Representatives Conaway, Crawford, Gibson,
    Yoho, Rouzer, Abraham, Moolenaar, Kelly, Peterson, David Scott
    of Georgia, Walz, Fudge, McGovern, DelBene, Vela, Lujan
    Grisham, Kuster, Kirkpatrick, Plaskett, Adams, Graham, and
    Ashford.
        Staff present: Haley Graves, Jadi Chapman, John Goldberg,
    Mary Nowak, Scott C. Graves, Faisal Siddiqui, John Konya, Anne
    Simmons, Lisa Shelton, Mary Knigge, Matthew MacKenzie, Nicole
    Scott, and Carly Reedholm.

    OPENING STATEMENT OF HON. K. MICHAEL CONAWAY, A REPRESENTATIVE
                         IN CONGRESS FROM TEXAS

        The Chairman. This hearing of the Committee on Agriculture
    entitled, Food Waste from Field to Table, will come to order.
        I would ask David Scott to open us with a prayer. David.
        Mr. David Scott of Georgia. Dear Heavenly Father, we come
    before your throne of grace to first of all give thanks. We
    thank you for so many blessings you bestow upon us; blessings
    sometimes we do not even know. We thank you for your Holy
    Spirit that intercedes for us on our behalf. We thank you, dear
    Heavenly Father, for this hearing, for what could be more
    important than the food that we get on the table for needy
    people. And in this case, dear Heavenly Father, as we discuss
    the issue of food waste, we hope that you will implant within
    this Committee our resolve to do as much as we can to eliminate
    the food waste, to help our farmers be able to have the labor
    to get food out of the fields and into the hands and at the
    tables of those people who need it most. Dear Heavenly Father,
    we ask this in your name, and in the name of your son, Jesus
    Christ. Amen.
        The Chairman. Amen. Thank you, David.
        Well, good morning. Since I became Chairman of the House
    Agriculture at the beginning of last year, we have held more
    than 70 hearings and have invited a broad range of experts,
    including people in the field, to share their knowledge of
    everything from the futures markets to the farmers' markets.
        The Committee doesn't agree all the time on every issue,
    but one of the reasons we are able to work in a bipartisan
    manner is that we remember well-meaning people can have
    different ideas about how to achieve the same goal, whatever
    the issue may be. Because we have a different way of getting
    there doesn't mean one of us is wrong, and this is something we
    lose sight of in America today. Good public policy is not a
    zero-sum game. If advocates, Members, whoever it may be, are
    close-minded and unopened to compromise, it all but ensures
    retention of the status quo regardless of the issue.
        An example of where we are engaging a variety of
    stakeholders is in this review of food waste. I commend my
    colleague from Maine, Chellie Pingree, for putting this on the
    Congressional radar. Today's hearing may be the first time the
    House Agriculture Committee is publicly engaging on this issue,
    but it will not be our last.
        Forty percent of the food grown in the country is wasted.
    That amounts to 133 billion pounds of food wasted. That is
    billion with a B. Considering we have about 45 million people
    receiving assistance through SNAP, I believe this is a
    tremendous opportunity for us to take a closer look at our food
    chain, and figure out a way to ensure that food grown in this
    country reaches the dinner table and not the trashcan.
        Speaking 2 weeks ago at a food waste summit, Secretary
    Vilsack commented that avoiding food waste loss could save U.S.
    families on average $1,500 a year, and limiting food waste
    globally could help prevent hunger and malnourishment in the
    825 to 850 million people worldwide who are not getting
    adequate food.
        Tackling food waste in this country is, and should be a
    nonpartisan issue that will be most successful by engaging
    everyone in the food chain, from the field to the table. It
    will take the collaboration of all stakeholders to be
    successful.
        As we begin this review, we will undoubtedly identify
    issues that seem easy to resolve, yet are more complex than
    they appear. We will likewise identify other issues that have
    already been addressed, but simply require collaboration and
    what amounts to a public relations campaign to raise awareness.
        Two such issues that Congress has acted upon that we should
    highlight today are the recently enacted permanent tax
    deduction for food donations and the Good Samaritan Food
    Donation Act. The permanent tax deduction for food donations
    was identified in recent legislation and was enacted as part of
    the last omnibus.
        The second issue is one we hear an awful lot about, yet was
    addressed years ago by our former colleague and a Vice Chairman
    of the Committee, the late Bill Emerson. Many businesses, when
    given the opportunity to donate perfectly safe and wholesome
    food, are reluctant because of liability concerns. The Bill
    Emerson Good Samaritan Food Donation Act, enacted in 1996,
    fully addresses this concern. I wish to place into the record a
    Memorandum of Opinion drafted by the Department of Justice for
    USDA General Counsel that not only spells out the direct
    protection of the Emerson Act, but also describes the
    preemptive effect on state laws that may not provide the same
    level of protection.
        When we began preparing for this hearing, we reached out to
    Representative Pingree, whom I am happy is here with us today
    and will shortly offer her introductory comments of her own.
    The witnesses that were invited represent a broad range of
    perspectives and expertise, but in no way represent the
    entirety of the community that is addressing this challenge.
    While this hearing is just one element of our review, we will
    also invite Members and staff, as well as other interested
    stakeholders, to attend an event later this afternoon here in
    this hearing room on the balcony to see what some of the
    organizations are doing to address food waste. That event will
    begin at approximately 1:30 today.
        [The prepared statement of Mr. Conaway follows:]

      Prepared Statement of Hon. K. Michael Conaway, a Representative in
                              Congress from Texas
        Since I became Chairman of the House Agriculture Committee at the
    beginning of last year, we've held more than 70 hearings and have
    invited a broad range of experts, including people in the field, to
    share their knowledge on everything from the futures markets to
    farmers' markets.
        The Committee doesn't agree all the time on every issue, but one of
    the reasons we're able to work in a bipartisan manner is that we
    remember well-meaning people can have different ideas about how to
    achieve the same goal, whatever the issue may be. Because we have a
    different way of getting there doesn't mean one of us is wrong--and
    this is something we're losing sight of in America today. Good public
    policy is not a zero-sum game. If advocates, Members, whoever it may be
    are close-minded and unopened to compromise, it all but ensures
    retention of the status quo regardless of the issue.
        An example of where we are engaging a variety of stakeholders is in
    this review of food waste. I commend my colleague from Maine, Chellie
    Pingree, for putting this on the Congressional radar. Today's hearing
    may be the first time the House Agriculture Committee is publicly
    engaging on this issue, but it will not be the last.
        Forty percent of the food grown in this country is wasted. That
    amounts to 133 billion pounds of food being wasted. That is billion
    with a B! Considering we have 45 million people currently receiving
    food assistance through SNAP, I believe this is a tremendous
    opportunity for us to take a closer look at our food chain and figure
    out a way to ensure that food grown in this country reaches the dinner
    table, not the trashcan.
        Speaking 2 weeks ago at a food waste summit, Secretary Vilsack
    commented that avoiding food waste loss could save U.S. families on
    average $1,500 a year, and limiting food waste globally could help
    prevent hunger and malnourishment in the 825 million to 850 million
    people worldwide who are not getting adequate food.
        Tackling food waste in this country is, and should be a nonpartisan
    issue that will be most successful by engaging everyone in the food
    chain, from field to table. It will take the collaboration of all
    stakeholders to be successful.
        As we begin this review, we will undoubtedly identify issues that
    seem easy to resolve, yet are more complex than they appear. We will
    likewise identify other issues that have already been addressed, but
    simply require collaboration and what amounts to a public relations
    campaign to raise awareness.
        Two such issues that Congress has acted upon that we should
    highlight today are the recently enacted permanent tax deduction for
    food donations and the Good Samaritan Food Donation Act. The permanent
    tax deduction for food donations was identified in recent legislation
    and was enacted as part of the last omnibus.
        The second issue is one we hear an awful lot about, yet was
    addressed years ago by our former colleague and a Vice Chairman of this
    Committee, the late Bill Emerson. Many businesses, when given the
    opportunity to donate perfectly safe and wholesome food, are reluctant
    because of liability concerns. The Bill Emerson Good Samaritan Food
    Donation Act, enacted in 1996 fully addresses this concern. I wish to
    place into the record a Memorandum Opinion drafted by the Department of
    Justice for the USDA General Counsel that not only spells out the
    direct protection of the Emerson Act, but also describes the preemptive
    effect on state laws that may not provide the same level of protection.
        When we began preparing for this hearing, we reached out to
    Representative Pingree whom I am happy is here with us today and will
    shortly offer some introductory comments of her own.
        The witnesses that were invited represent a broad range of
    perspectives and expertise, but in no way represent the entirety of the
    community that is addressing this challenge. While this hearing is just
    one element of our review, we will also invite Members and staff, as
    well as other interested stakeholders to attend an event later this
    afternoon here in this hearing room on the balcony to see firsthand
    what some organizations are doing to address food waste. That event
    will begin at approximately 1:30 this afternoon.
        I will now recognize our Ranking Member, Rep. Peterson, for his
    opening remarks.
                                   Attachment
    Preemptive Effect of the Bill Emerson Good Samaritan Food Donation Act
        The Bill Emerson Good Samaritan Food Donation Act (``Act'')
    preempts state ``good Samaritan'' statutes that provide less protection
    than the Act from civil and criminal liability arising from food
    donated in good faith for distribution to the needy than the Act
    provides.

    March 10, 1997
    Memorandum Opinion for General Counsel, Department of Agriculture
        You have requested our views on the question whether the Bill
    Emerson Good Samaritan Food Donation Act (the ``Act''), Pub. L. No.
    104-210, 110 Stat. 3011 (1996) codified as amended at 42 U.S.C.  1791
    (Supp. II 1996), preempts state statutes that provide less protection
    from civil and criminal liability arising from food donated in good
    faith for distribution to the needy. We believe that Congress intended
    to establish a minimum level of immunity for those engaged in food
    donation and distribution. Accordingly, we believe that Congress
    intended to preempt state ``good Samaritan'' statutes that provide less
    liability protection than the Act.
    I.
        In order to ``encourage the donation of food and grocery products
    to nonprofit organizations for distribution to needy individuals,'' the
    Bill Emerson Good Samaritan Food Donation Act precludes civil and
    criminal liability arising from food donated in good faith, except in
    cases of gross negligence or intentional misconduct. 42 U.S.C.  1791
    [Pub. L. No. 104-210, 110 Stat. at 3011]. It amended and converted to
    affirmative law the Model Good Samaritan Food Donation Act (the ``Model
    Act''), 42 U.S.C.  12671-12673 (1994), which has been enacted in 1990
    to provide states with model language for revising their existing good
    Samaritan laws.\1\ The current Act provides:
    ---------------------------------------------------------------------------
        \1\ Every state and the District of Columbia prior to 1990 had
    enacted some form of statutory protection from liability for food
    donation and distribution. See H.R. Rep. No. 104-661, at 2-3 (1996)
    (citing ``Summary of Good Samaritan Food Donation Statutes'' prepared
    by Winthrop, Stimson, Putnam and Roberts in 1992 for ``Share Our
    Strength,'' a nonprofit hunger relief organization). These statutes are
    exceptions to the common law or statutory rule of strict liability for
    distributing food or any other defective product, the defective aspect
    of which causes injury. Id. The statutes vary considerably, however.
    Some provide liability only for gross negligence or intentional acts,
    while other impose liability for negligence. Still others limit
    liability if the donor reasonably inspects the food at the time of
    donation and has no actual or constructive knowledge of any defective
    condition. Only one state has adopted the language in the Model Act.
    Id.

              (1) Liability of person or gleaner.--A person or gleaner
            shall not be subject to civil or criminal liability arising
            from the nature, age, packaging, or condition of apparently
            wholesome food or an apparently fit grocery product that the
            person or gleaner donates in good faith to a nonprofit
            organization for ultimate distribution to needy individuals.
              (2) Liability of nonprofit organization.--A nonprofit
            organization shall not be subject to civil or criminal
            liability arising from the nature, age, packaging, or condition
            of apparently wholesome food or an apparently fit grocery
            product that the nonprofit organization received as a donation
            in good faith from a person or gleaner for ultimate
            distribution to needy individuals.
              (3) Exception.--Paragraphs (1) and (2) shall not apply to an
            injury to or death of an ultimate user or recipient of the food
            or grocery product that results from an act or omission of the
            person, gleaner, or nonprofit organization, as applicable,
            constituting gross negligence or intentional misconduct.

    42 U.S.C.  1791(c) [110 Stat. at 3011-12].\2\
    ---------------------------------------------------------------------------
        \2\ The Act defines a ``gleaner'' as ``a person who harvests for
    free distribution to the needy, or for donation to a nonprofit
    organization for ultimate distribution to the needy, an agricultural
    crop that has been donated by the owner.'' 42 U.S.C.  1791(b)(5) [
    12672(b)(5)].
    ---------------------------------------------------------------------------
    II.
        As the Supreme Court has observed, preemption is fundamentally a
    question of Congressional intent. See Medtronic, Inc. v. Lohr, 518 U.S.
    470, 485 [116 S. Ct. 2240, 2250] (1996) (``[t]he purpose of Congress is
    the ultimate touchstone in every pre-emption case'') (quoting Retail
    Clerks Int'l Ass'n v. Schermerhorn, 375 U.S. 96, 103 (1963)). In
    assessing Congressional intent, the Court has ``long presumed that
    Congress does not cavalierly pre-empt state-law causes of action.'' Id.
    In cases where ``Congress has `legislated . . . in a field which the
    states have traditionally occupied.' '' the Court `` `start[s] with the
    assumption that the historic police powers of the states were not to be
    superseded by the Federal Act unless that was the clear and manifest
    purpose of Congress.' '' Id. (quoting Rice v. Santa Fe Elevator Corp.,
    331 U.S. 218, 230 (1947)). It is with this admonition in mind that we
    examine the preemptive effect of the Act.
        The Supreme Court has identified three ways in which a Federal law
    may preempt state law.\3\ First, Congress may preempt state law
    explicitly in the text of its statute. See English v. General Elec.
    Co., 496 U.S. 72, 78 (1990).\4\ Second, Congress may preempt state laws
    implicitly by demonstrating an intent to occupy the field exclusively
    with Federal regulation. See Rice, 331 U.S. at 230. Finally, even where
    Congress permits concurrent state regulation in a field, such
    regulation is preempted to the extent it actually conflicts with
    Federal law. The Supreme Court has found an actual conflict where
    ``compliance with both Federal and state regulations is a physical
    impossibility for one engaged in interstate commerce,'' Florida Lime &
    Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1962), or where
    state law ``stands as an obstacle to the accomplishment and execution
    of the full purposes and objectives of Congress.'' Hines v. Davidowitz,
    312 U.S. 52, 67 (1941).
    ---------------------------------------------------------------------------
        \3\ See generally Freightliner Corp. v. Myrick, 514 U.S. 280, 287
    [115 S. Ct. 1483, 1487] (1995); Cipollone v. Liggett Group, Inc., 505
    U.S. 504, 516-17 (1992).
        \4\ For example, to expressly preempt state regulation on a
    particular subject, Congress may provide that ``[n]o state or political
    subdivision of a state may establish or continue in effect . . . any
    requirement--(1) which is different from or in addition to, any
    requirement applicable under [Federal law] . . . and (2) which relates
    . . . to any other matter included in a requirement applicable . . .
    under [Federal law].'' 21 U.S.C.  360k(a) (1994) (Federal Food, Drug,
    and Cosmetic Act, as amended by the Medical Device Amendments); see
    also 29 U.S.C.  1144(a) (1994) (provision in ERISA preempting ``any
    and all state laws insofar as they may now or hereafter relate to any
    employee benefit plan''). Congress instead may limit the extent to
    which states may regulate, by providing for example that ``[a] state
    may adopt or continue in force any law, rule, regulation, order, or
    standard relating to railroad safety until such time as the Secretary
    has adopted a rule, regulation, order, or standard covering the subject
    matter of such state requirement.'' Federal Railroad Safety Act 45
    U.S.C.  434, repealed by Act of July 5, 1994, Pub. L. No. 103-272
    7(b), 108 Stat. 1379.
    ---------------------------------------------------------------------------
        Although the Act contains no express preemption clause, its purpose
    is to supersede, at least to a certain extent, state good Samaritan
    statutes. Thus, the question is to what extent it supersedes those
    statutes. We believe the Act clearly preempts state good Samaritan
    statutes to the extent they provide less liability protection than
    Federal law--for example, to the extent they permit liability based on
    evidence of negligence--because such laws literally would ``stand[] as
    an obstacle to the accomplishment and execution of the full purposes
    and objectives of Congress.'' Hines, 312 U.S. at 67. As stated above,
    the express purpose of the Act is to ``encourage the donation of food
    and grocery products to nonprofit organizations for distribution to
    needy individuals'' by limiting liability for such activities. Unless
    potential donors and distributors are assured that the Act sets an
    absolute liability ceiling, they will continue to be deterred by the
    threat of liability under state law and will not be encouraged by the
    Act to donate food. Thus, to have any effect at all, the Act must
    preempt state statutes that provide less liability protection.
        The legislative history of the Act confirms this interpretation. As
    Representative Danner explained when introducing the bill in the House,

              the current patchwork of state laws has been cited by many
            potential donors as the principal reason so much food is thrown
            away rather than given to food banks and food pantries for
            distribution to the hungry. . . .
              Simply put, we need a reasonable nationwide law that
            eliminates confusion and forges a stronger alliance between the
            public and private sectors in this nation. That is exactly what
            this bill delivers. The [Act] will establish a uniform national
            law to protect organizations and individuals when they donate
            food in good faith.
              A business should not have to hire a legal team to interpret
            numerous state laws so that it feels comfortable in
            contributing food to the hungry.

    142 Cong. Rec. 17,066 (1996) [H7479 (daily ed. July 12, 1996)].
        The remarks of other Members of Congress also demonstrated an
    intent to preempt those state good Samaritan statutes that conflict
    with the Federal standard. See e.g., H.R. Rep. No. 104-661, at 7 (1996)
    (``The bill would preempt civil and criminal liability laws of state
    and local governments that deal with the donation of food and grocery
    products to nonprofit organizations.''); 142 Cong. Rec. 21,516 (1996)
    [S9532 (daily ed. Aug. 2, 1996)] (statement of Sen. Kennedy)
    (acknowledging that the Act would ``diminish the protections afforded
    by the tort laws''). Indeed, Representative Conyers expressed concern
    about the intended preemptive effect of the Act:

              Although I am supportive of the impetus behind the
            legislation--encouraging private entities to donate food to
            nonprofit organizations who distribute food to the needy--I
            question whether preempting traditional state law prerogatives
            in this area is desirable . . . . [A]ll 50 states have enacted
            special statutory rights concerning food donations. Not
            surprisingly, the states have crafted a variety of liability
            rules--ranging from those who subject all negligent parties to
            liability, to those who limit liability only to grossly
            negligent or intentional acts.
              Unfortunately, with the adoption of this bill, the House will
            be seeking to impose a one-size-fits-all legal standard for
            food donors . . . .

    142 Cong. Rec. 17,067 (1996) [H7480 (daily ed. July 12, 1996)].

        President Clinton also apparently believed that the Act would
    preempt conflicting state laws. In his signing statement the President
    observed:

              In working with various private sector donors and food banks
            . . . it has come to light that liability concerns are often an
            impediment to food recovery and donation efforts. Although many
            states have enacted their own ``Good Samaritan'' laws to
            support food recovery and donation efforts, many businesses
            have advised that these varying state statutes hinder food
            donations. This legislation will end the confusion regarding
            liability for food recovery and donation operations through
            uniform definitions in one national law.

    2 Pub. Papers of William J. Clinton 1737, 1737-38 (1996) [32 Weekly
    Comp. Pres. Doc. 1943 (Oct. 1, 1996)].
        We believe that the legislative history of the Act, together with
    its express purpose and the context in which it was enacted, indicate
    that Congress intended to establish a ``uniform national law'' that
    displaces conflicting state good Samaritan statutes--i.e., those that
    provide less liability protection than Federal law. There is an
    argument that Congress intended to go even further, preempting not only
    less protective state statutes but all state good Samaritan laws.
    Although we acknowledge that some parts of the legislative history
    could be read to support this argument, we find insufficient evidence
    that Congress intended to preempt the field. ``Field preemption'' does
    not seem necessary to achieve the Congressional goals underlying the
    Act. The Act should have the desired effect of encouraging food
    donation as long as it assures potential donors that they will not
    incur liability for conduct above a certain national level of
    culpability. The existence of state standards that provide even greater
    protection from liability should not deter food donation; indeed, they
    may further promote it. Furthermore, as noted above, the Supreme Court
    is reluctant to construe preemption broadly in areas traditionally
    regulated by the states.\5\ For these reasons, we decline to interpret
    the Act to preempt all state good Samaritan statutes. Rather, we
    construe the Act to preempt only those state good Samaritan statutes
    that furnish less liability protection than Federal law.
    ---------------------------------------------------------------------------
        \5\ See Medtronic, Inc., 518 U.S. at 485 [116 S. Ct. at 2250];
    Rice, 331 U.S. at 230.

    Dawn E. Johnsen,
    Acting Assistant Attorney General, Office of Legal Counsel.

        The Chairman. I will now recognize our Ranking Member, Mr.
    Peterson, for any opening remarks that he may have.

    OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE
                       IN CONGRESS FROM MINNESOTA

        Mr. Peterson. Thank you, Mr. Chairman. And welcome to
    today's witnesses. And, Congresswoman Pingree, I appreciate
    your leadership on this issue. Welcome to the Committee.
        I am probably not the only one who finds the terms sell by
    and best by confusing. This confusion leads to a lot of food
    waste that we see in this country, and I am glad that we are
    looking at this issue today.
        American consumers are increasingly less connected to the
    farm and to where food comes from. And a lot of people no
    longer view food as valuable. When I was growing up, my mom
    used every part of the animal, but that is no longer the case,
    and food waste has increased.
        Producers have done such a good job of creating an abundant
    food supply that a lot of folks don't think twice about tossing
    out food that may not look perfect, or has surpassed a best by
    or sell by date stamped on the box, whatever that means. This
    is a challenge, but I also think it presents a great
    opportunity for production agriculture. While many have no
    problem throwing food away, many Americans are still struggling
    to feed their families.
        There is a role for farmers and ranchers to play in this,
    and they can and should step up to the plate and help meet
    these needs.
        Again, I am happy that we are beginning to explore this
    issue, and look forward to a constructive conversation. This is
    an area that we can work across party lines and forge a diverse
    coalition to tackle food waste in this country. I look forward
    to the testimony. And I yield back.
        The Chairman. I thank the gentleman.
        The chair would request that other Members submit their
    opening statements for the record so that our witnesses may
    begin their testimony, and to ensure there is ample time for
    questions.
        I would like to welcome our first panel to the witness
    table. The Honorable Chellie Pingree, Congresswoman from the
    great State of Maine. Ms. Pingree, you can begin when you are
    ready.

    STATEMENT OF HON. CHELLIE PINGREE, A REPRESENTATIVE IN CONGRESS
                               FROM MAINE

        Ms. Pingree. Well, thank you very much, Chairman Conaway,
    and Ranking Member Peterson. I really appreciate that you are
    holding this hearing today and giving me the opportunity to say
    a few words about it. And I particularly appreciate that you
    remembered to call it the great State of Maine.
        Obviously, this is an issue that people have been
    increasingly concerned about. And I have been very grateful to
    have a chance to work on it, and as all of you said, work
    across the aisle and with a whole diverse group of interests
    that are concerned about the fact that 40 percent of the food,
    as you mentioned, is wasted in this country. Particularly
    people on the Agriculture Committee know how much work goes
    into growing food, how much water is lost in the process of
    growing food, how long it has to be transported around the
    country, and just that gives you a sense of how much we are
    wasting, besides the food, in terms of energy and other
    resources in doing this.
        The other big concern is that we do have 50 million people
    in this country going hungry. And when there is confusion
    around date labeling or how food can be disposed of, with the
    good Samaritan laws that we have talked about, it just makes it
    that much more difficult for restaurants and retail stores to
    find out how to make sure that uneaten food and beyond-the-
    label food gets to those food banks and to those people in
    need. So that is part of what we are proposing to look at in
    the bill that we submitted called the Food Recovery Act.
        It is wonderful to see that the USDA and the EPA together
    have announced a food waste reduction goal. They did that last
    year. And their goal is to reduce food waste by 50 percent by
    the year 2030. So I have an ambitious goal, but also showing
    that there are great opportunities there.
        I am fortunate enough to serve on the Agricultural
    Appropriations Subcommittee, so we have been looking for ways
    to work with them on funding areas that could make a difference
    in solving this problem, and also work on some of the same
    things with the FDA.
        There is certainly no single way to go about solving this
    problem, and I know as you dig deeper into it today and you
    hear from the wonderful panel that you have chosen, you will
    start to hear that it is something we have to face on all
    fronts; from helping consumers to understand differently,
    giving opportunities to farmers who want to make sure food gets
    into the right hands, and helping retailers in particular and
    restaurant owners to reduce that waste, or to make sure it goes
    to the places that we want.
        In my own state, we have a supermarket chain that is also
    committed to zero food waste, which means making sure
    everything gets sold in the store that possibly can, even if
    some of it looks a little ugly or misshapen, then making sure
    it gets to food banks and places where people are in need, and
    finally making sure that food that can't go anywhere else,
    either goes to a composting facility or an anaerobic digester,
    because that is another big issue here is most food waste ends
    up in municipal landfills. And for those of you who have served
    on municipal government, you know that is one of the increasing
    costs. It also produces methane gas which is much more toxic
    than many of the other gases that we already worry about.
    Whereas, if it is converted to compost or anaerobic digestion,
    we are either left with wonderful looking soil, or we are
    producing energy with that food waste.
        Making sure that there are Federal funds available to
    municipalities who want to do that is another part of this, and
    something that can certainly be dealt with in a variety of
    committees.
        Just in closing, I want to mention the one thing that
    Ranking Member Peterson and I were just talking about, and I am
    sure all of you on the Committee, and most of us have
    experienced this problem, perhaps in your own household, where
    you look at a package, it has a label on it, and think, okay,
    well, this is probably still good, we should eat it. Yet
    someone else in your household looks at it and says, ``Oh, no,
    no, look at that date, we have to throw it away.'' We actually
    submitted a bill last week with Senator Blumenthal about date
    labeling to try to bring some sensibility into this. And
    because we hear so much about the domestic disagreements that
    go on, we thought we should call this the Domestic Harmony
    Bill, to reduce some of those issues that people face. But
    basically, manufacturers have joined us, we were endorsed in
    that bill by Campbell Soup and Nestle, and a variety of other
    companies have already come forward because they find it
    confusing too.
        Basically, those labels, for the most part, don't have a
    uniform or scientific basis. They may represent something to
    that individual company, but it really doesn't mean you can't
    eat that food. So our idea is to ask the USDA and the FDA to
    work together to create a label, one that says expires on, for
    those foods that really do have a safety issue, and you should
    know when it is too late to eat it. And the other one would
    just say best if used by. So that tells you that that bag of
    crackers will be best if you eat it by a certain date, but
    nothing is going to happen to you if you eat it a month later,
    or maybe even the next season when you return to your summer
    cabin, or you find it in a box that you never unpacked. Chances
    are, that is going to be perfectly good food. So we would like
    to bring some sensibility to that. It would be great for
    manufacturers, it would take some of the stigma out of how that
    food gets donated. And, in fact, there are 20 states around the
    country that prohibit food donations if that date has passed.
    And if you think about it, we are keeping 20 states away from
    giving that food to people in need, and it is a completely
    arbitrary date.
        So it seems like that is one of the ones that would be
    extremely cost-effective. It would create much less waste,
    something that most of us agree on, and you will find most of
    the manufacturers and others agree on it as well.
        So thank you very much for giving me a moment to open this
    up today. Thank you for taking on this topic. I look forward to
    working with you in any way I can. And thank you for giving me
    a little bit of nostalgia to return to the Committee which I
    served on in my early days. I truly enjoyed working with all of
    you and being in this room.
        [The prepared statement of Ms. Pingree follows:]

        Prepared Statement of Hon. Chellie Pingree, a Representative in
                              Congress from Maine
        I would like to thank Chairman Conaway, Ranking Member Peterson,
    and Members of the House Committee on Agriculture for holding a hearing
    on food waste and for inviting me to speak today. As a former Member of
    the Committee, I am excited to kick off this food waste hearing and
    discuss why food waste is such a pressing issue.
        On one hand, this is a problem that has been getting worse and
    worse, but has gone largely unnoticed. When I tell people that 40
    percent of the food that is produced in this country is wasted, they
    are usually shocked. As Members of this Committee, you are all aware of
    the incredible amount of resources and hard work that food production
    requires. I think you'll agree it's unconscionable that so much food
    ends up in landfills.
        But on the other hand, it's a problem that we've known about at
    some level for a long time. Doesn't everyone remember your grandmother
    telling you to clean your plate, and to not waste food?
        When good food goes to waste on the farm, it means the resources
    used to grow that food--fuel, labor and water--are also wasted. When
    food goes to waste in a local restaurant, it means less revenue for the
    owner. And wherever and whenever food is wasted, it means less food for
    the 50 million Americans that are food-insecure.
        Recognizing the extent of this problem, USDA and EPA announced the
    first food waste reduction goal last year--a 50 percent reduction by
    2030. As a Member of the Agricultural Appropriations Subcommittee, I
    asked USDA and EPA leadership a lot of questions about food waste
    during appropriations hearings this year to see what they already have
    the authority to do. I look forward to continuing to work with these
    Federal agencies, as well as the Food and Drug Administration, to
    support a range of food waste reduction efforts.
        There is no single solution to the problem of food waste. And not
    all of the solutions will be simple or easy. But many--if not most--of
    the solutions are common-sense proposals that should be things we can
    all agree on.
        Take date labeling, for example. I bet most of you have gotten into
    an argument with someone at home about whether or not you should throw
    away some food because the date on the label has passed. It's pretty
    common. I think it must happen in almost every household in America.
        And mostly those arguments come about because date labeling is
    confusing and inconsistent. I introduced a bill last week that has a
    pretty simple proposal: create two labels--one that says ``expires on''
    for food that really is unsafe to eat after a certain date, and another
    that says ``best if used by'' for everything else. The bill would also
    make sure that no states or local health departments could ban the
    donation of perfectly good food, just because the date on the label has
    passed. This is just one way we can make sure food gets to those who
    need it most.
        Today you will hear from an impressive group of witnesses. As I was
    getting ready to introduce a comprehensive food waste bill last year,
    and a food date labeling bill last week, I have relied heavily on the
    experts you are about to hear from. They have done the research and
    collected the data to illustrate the extent of food waste in America,
    and they have excellent proposals on the best ways to address these
    problems.
        Tackling the costly problem of food waste is something that we
    really can work together on. I am thrilled about the momentum around
    food waste, both from the private-sector and now here on Capitol Hill.
    I want to again thank the Committee for helping to start this
    conversation.

        The Chairman. Well, thank you, ma'am, for being here. I
    appreciate your comments this morning, and for your leadership
    and getting this initiative started. And we will look forward
    to pitching in with you, maybe we shouldn't say pitching in,
    but nevertheless, helping with reduction of food waste. So
    thank you for----
        Ms. Pingree. Be careful about that baseball stuff.
        The Chairman. I got you.
        We will now transition to our second panel. Chellie, thank
    you very much for being with us today. I appreciate it.
        I would like to welcome our second panel of witnesses to
    the table. We have Ms. Dana Gunders, Senior Scientist, Food and
    Agriculture Program, Natural Resources Defense Council, San
    Francisco, California. We have Mr. Jesse Fink who is the
    Managing Director of Mission Point in Norwalk, Connecticut. We
    have Mr. John Oxford, President and CEO, L&M Companies,
    Raleigh, North Carolina. We have Ms. Meghan Stasz, Senior
    Director, Sustainability, Grocery Manufacturers Association
    here in Washington, D.C. Ms. Diana Aviv, CEO, Feeding America,
    Chicago, Illinois. And Ms. Emily Broad Leib, the Director, Food
    Law Policy Clinic, Harvard Law School, Jamaica Plain,
    Massachusetts.
        Everybody found their seats?
        All right, Ms. Gunders, if you will begin when you are
    ready, ma'am.

         STATEMENT OF DANA GUNDERS, SENIOR SCIENTIST, FOOD AND
                 AGRICULTURE PROGRAM, NATURAL RESOURCES
                   DEFENSE COUNCIL, SAN FRANCISCO, CA

        Ms. Gunders. Well thank you very much, Chairman Conaway,
    Ranking Member Peterson, and Members of the Committee, thank
    you for inviting me to testify today, and being willing to
    explore this issue.
        My name is Dana Gunders. I am a senior scientist at the
    Natural Resources Defense Council. I am also the author of a
    widely cited report on food waste, and a book called the Waste
    Free Kitchen Handbook, which is a consumer guide to wasting
    less food.
        So imagine walking out of the grocery store with five bags
    of groceries, dropping two in the parking lot, and not
    bothering to pick them up. It seems crazy, but that is
    essentially what we are doing today across the country where we
    are wasting 40 percent of all of our food. We are leaving
    entire fields unharvested, and eliminating produce solely for
    its looks. We are serving massive portions, throwing out food
    just because it has passed its sell-by date, and eating out
    instead of what is in our fridge.
        Now imagine a farm that covers \3/4\ of the State of
    California, and uses as much water as California, Ohio, and
    Texas combined. When you harvest that farm, it is enough food
    to fill a tractor trailer every 20 seconds, and then it drives
    all over the country, except instead of going to people to eat
    it, it goes straight to the landfill. That is essentially what
    we are doing today. In fact, food is the number one product
    entering our landfills today.
        This is expensive. All told, America spends up to $218
    billion, or 1.3 percent of GDP, each year on wasted food.
    Beyond money, we are wasting nutrition. More than 1,250
    calories per capita every day. That is three times the caloric
    requirements of the entire food-insecure population of the
    country.
        And we have not always been so wasteful. In the U.S., we
    waste 50 percent more food per capita than we did in the 1970s.
    This means that there was once a time when we wasted far less,
    and, therefore, it gives me hope that we could get there again.
        Wasting less food is to the food sector as energy
    efficiency is to the energy sector. The cheapest, easiest way
    to meet growing demand. The UN projects increased demand will
    lead to a 60 percent growth in food production by 2050, and
    almost \1/4\ of that projected demand could be offset by
    addressing food waste.
        There are far too many causes of food waste to address in
    just a few short minutes, but it is important to note that
    wasting food happens to the best of us, as individuals and
    businesses. We have all had to toss moldy strawberries, or
    clean out that science experiment in the back of our fridge.
    And the good news is that unlike many of the thorny issues that
    I am sure you deal with, this one feels solvable. No one wants
    to waste food, and people strangely love diving into this
    topic. I have been amazed at the energy and enthusiasm that
    people have when they come up to me and tell me that they found
    a way to use their wrinkled tomatoes in a sauce, or something
    like that. And because there are direct savings to be had, this
    enthusiasm has extended to the business and the entrepreneurial
    communities as well. Even modest savings can make a difference.
        I was asked to give an overview of the problem, but in my
    last minute I would like to suggest at least a few solutions. I
    would also like to note that the EPA has prioritized prevention
    solutions and food donation over things like animal feed and
    composting.
        For solutions, first address consumer waste. From the
    limited information we do have, households appear to be the
    largest source of food waste. We recently launched a national
    media campaign with the Ad Council to address this, called Save
    the Food, with a goal of providing consumers both the
    inspiration and information to waste less in their homes. If
    the government were to embrace this campaign and provide
    additional funding, it could vastly extend the reach and the
    impact of the campaign.
        Second, standardized food date labels, as we have already
    heard. Because they misinterpret date labels, consumers are
    unknowingly and unnecessarily tossing perfectly good food. And
    other witnesses will address this.
        Third, reduce waste within Federal Government agencies. How
    much is the Federal Government spending to buy food that
    ultimately never gets eaten? Addressing this could both reduce
    agency costs, while also incubating model solutions that others
    could follow.
        Fourth, address data needs. Right now, there are some very
    basic questions that we can't answer.
        And last, support the Food Recovery Act, introduced by
    Representative Pingree. It tackles food waste from a variety of
    angles, and includes solutions for many of the issues discussed
    in my written testimony.
        Wasting less food is something everyone can get behind, and
    in some cases, there is even money to be saved. I expect,
    should you pursue solutions to this problem, you will find
    there is a broad base of support behind you.
        Thank you.
        [The prepared statement of Ms. Gunders follows:]

         Prepared Statement of Dana Gunders, Senior Scientist, Food and
          Agriculture Program, Natural Resources Defense Council, San
                                 Francisco, CA
        Good morning, Chairman Conaway, Ranking Member Peterson, and
    Members of the Committee. Thank you for inviting me to testify today.
    My name is Dana Gunders, and I am a Senior Scientist at the Natural
    Resources Defense Council where I lead our work on reducing the amount
    of food that goes to waste across the country. I'm also the author of
    the widely-quoted report on food waste, Wasted: How America is Losing
    Up to 40 Percent of Its Food from Farm to Fork to Landfill as well as
    the Waste Free Kitchen Handbook, a consumer guide to wasting less food.
        Imagine walking out of the grocery store with five bags, dropping
    two in the parking lot, and not bothering to pick them up. Seems crazy,
    but that is essentially what is happening across the country today--40
    percent of food in the United States today goes uneaten.\1\
    ---------------------------------------------------------------------------
        \1\ K.D. Hall, J. Guo, M. Dore, C.C. Chow, National Institute of
    Diabetes and Digestive and Kidney Diseases, ``The Progressive Increase
    of Food Waste in America and Its Environmental Impact,'' PLoS ONE
    4(11): e7940, 2009. The author confirmed his estimate in communication
    in 2015. USDA estimates 31%, but that includes only losses at retail
    and consumer levels. When the full supply chain is considered, the 31%
    number by USDA essentially corroborates the 40% estimate.
    ---------------------------------------------------------------------------
        We are leaving entire fields unharvested, eliminating produce
    solely for its cosmetics, throwing out food just because its past or
    even close to its ``sell-by'' date, inundating restaurant patrons with
    massive portions, and eating out instead of using what's in our fridge.
        Per capita, America wastes more than 1,250 calories every day and
    35 pounds of food every month.\2\ As a country, this amounts to up to
    $218 billion, or 1.3% of GDP,\3\ spent each year on wasted food. For a
    family of four, this means at least $1500 spent annually on food they
    never eat.\4\
    ---------------------------------------------------------------------------
        \2\ Buzby, J., et al. ``The Estimated Amount, Value, and Calories
    of Postharvest Food Losses at the Retail and Consumer Levels in the
    United States'' USDA Economic Research Service Economic Information
    Bulletin No. (EIB-121) 39 pp., February 2014 http://www.ers.usda.gov/
    publications/eib-economic-information-bulletin/eib121.aspx.
        \3\ ReFED, ``A Roadmap to Reduce U.S. Food Waste by 20 Percent.''
    March 2016. www.refed.com. USDA estimates $161 billion but does not
    include the full supply chain and uses 2010 food prices as opposed to
    2015.
        \4\ Buzby, J., et al. ``The Estimated Amount, Value, and Calories
    of Postharvest Food Losses at the Retail and Consumer Levels in the
    United States'' USDA Economic Research Service Economic Information
    Bulletin No. (EIB-121) 39 pp., February 2014 http://www.ers.usda.gov/
    publications/eib-economic-information-bulletin/eib121.aspx. ReFED's
    analysis found it to be $1,800 annually for a household of four.
    ---------------------------------------------------------------------------
        Beyond money, we are missing an opportunity to provide sustenance
    and nutrition--just \1/3\ of the country's wasted food could provide
    the caloric equivalent of the entire diet for the 48 million food-
    insecure Americans, if only it could be distributed properly.\5\
    ---------------------------------------------------------------------------
        \5\ A. Coleman-Jensen, et al. ``Household Food Security in the
    United States in 2013'' USDA Economic Research Service, Economic
    Research Report No. (ERR-173) 41 pp, September 2014. This source states
    that just over 49 million individuals are food-insecure. It would take
    32% of total losses and waste reported in Hall, et al., to provide
    2,500 kcal/day to that many people, which would equate to a total diet.
    Of course, distribution challenges would and quality of nutrition are
    not considered in this back of envelope calculation.
    ---------------------------------------------------------------------------
        Furthermore, we are investing tremendous amounts of resources on
    this uneaten food. If all of our country's wasted food was grown in one
    place, this mega-farm would cover roughly 80 million acres, over \3/4\
    of the state of California. Growing the food on this wasteful farm
    would consume all the water used in California, Texas, and Ohio
    combined. The farm would harvest enough food to fill a 40 ton tractor
    trailer every 20 seconds. Many of those trailers would travel thousands
    of miles, distributing food to be kept cold in refrigerators and
    grocery stores for weeks. But instead of being purchased, prepared, and
    eaten, this perfectly good food would be loaded onto another line of
    trucks and hauled to a landfill, where it would emit a harmful stream
    of greenhouse gases as it decomposes.\6\
    ---------------------------------------------------------------------------
        \6\ ReFED, ``A Roadmap to Reduce U.S. Food Waste by 20 Percent.''
    March 2016. www.refed.com.
    ---------------------------------------------------------------------------
        In fact, food is the number one contributor to landfills today,
    more than any other material.
        Globally, if food waste were a country, it would use more water
    than any other country on the planet and rank third in greenhouse gas
    footprint after China and the U.S.\7\ In America alone, the greenhouse
    gas footprint is estimated to be equivalent to 33 million cars
    annually.
    ---------------------------------------------------------------------------
        \7\ United Nations Food and Agriculture Organization, ``Food
    Wastage Footprint: Impacts on Natural Resources'' 2013. http://
    www.fao.org/docrep/018/i3347e/i3347e.pdf.
    ---------------------------------------------------------------------------
        There's a clear parallel between wasting less food and energy
    efficiency. Both food and energy are resource intensive industries that
    face increasing global demand as a result of population growth and
    increasing standards of living. At some point, we realized the easiest,
    cheapest way to meet growing demand for energy was to reduce it in the
    first place. We are only now starting to realize the same approach is
    merited for food. Without taking waste reduction into account, the
    United Nations Food and Agriculture Organization projects that food
    production will grow 60 percent by 2050 in order to match projected
    demand.\8\ It's estimated almost \1/4\ of that projected demand could
    be offset through halving the amount of food that goes to waste.\9\
    ---------------------------------------------------------------------------
        \8\ United Nations Food and Agriculture Organization, ``World
    Agriculture Towards 2030/2050, The 2012 Revision.'' 2012. http://
    www.fao.org/docrep/016/ap106e/ap106e.pdf.
        \9\ Lipinski, B., et al. ``Reducing Food Loss and Waste'' World
    Resources Institute. 2013.
    http://www.wri.org/sites/default/files/
    reducing_food_loss_and_waste.pdf. Estimate is 22% of projected demand
    could be offset through halving the amount of food lost or wasted.
    ---------------------------------------------------------------------------
        We have not always been so wasteful. In the U.S., we waste 50
    percent more food per capita than we did in the 1970s.\10\ This means
    that there was once a time when we wasted far less, and therefore gives
    me hope we could waste less today.
    ---------------------------------------------------------------------------
        \10\ K.D. Hall, J. Guo, M. Dore, C.C. Chow, National Institute of
    Diabetes and Digestive and Kidney Diseases, ``The Progressive Increase
    of Food Waste in America and Its Environmental Impact,'' PLoS ONE
    4(11): e7940, 2009.
    ---------------------------------------------------------------------------
        To help evaluate solutions, the EPA has established a ``food
    recovery hierarchy.'' It essentially echoes the traditional ``reduce,
    reuse, recycle'' ethic that first and foremost, we should prevent waste
    from happening in the first place. When that's not possible, we should
    aim to use surplus to feed those in need. After that animal feed is
    preferred, and then uses such as composting and anaerobic digestion.
    Figure 1: EPA's Food Recovery Hierarch

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Food waste is a complex problem with losses occurring throughout
    the supply chain from ``farm to fork.'' There are far too many reasons
    to cover in a few short minutes. But I expect that over the course of
    the next week, as you go about your lives, you will notice a few
    yourselves. Nevertheless, I will try to give you a sense of a few:
        Crops are sometimes left unharvested because their appearance does
    not meet strict quality standards imposed by supermarkets, or because
    of damage caused by pests, disease, labor shortages, or weather. When
    market prices are too low, growers may leave some crops in the field if
    the price will not cover their costs to harvest, wash, sort, package
    and transport the product.
        In catching seafood, there is enough bycatch discarded to provide
    total yearly protein for 1.6 to two million people.\11\
    ---------------------------------------------------------------------------
        \11\ D.C. Love, et al. ``Wasted Seafood in the United States: From
    Net to Plate''. Global Environmental Change 35 (2015) 116-124.
    ---------------------------------------------------------------------------
        Grocery stores are in the challenging position of having to carry a
    vast array of products at every hour of the day. This high level of
    inventory--the cost of consumer convenience--inevitably leads to waste.
        At restaurants, large portions, large menus, and poor training for
    food handlers contribute to food waste. All-you-can-eat settings have a
    particularly egregious amount of waste between consumers taking too
    much and the challenge of donating excess product that's been left out.
        Last, from the limited data we have, it appears consumers represent
    the largest portion of food waste of any segment of the supply chain.
    Poor food management, lack of kitchen knowledge, and larger portions
    are key contributors there.
        A detailed description of many drivers at each stage of the supply
    chain is included in the report Wasted * that is being submitted with
    this testimony.
    ---------------------------------------------------------------------------
        * The report referred to is retained in Committee file. Editor's
    note: the hyperlink to download the full report is: https://
    www.nrdc.org/sites/default/files/wasted-food-IP.pdf.
    ---------------------------------------------------------------------------
    Promising Examples
        The good news is, unlike many of the thorny issues I'm sure you
    deal with, this one feels solvable. No one wants to waste food. And
    somehow, people strangely love diving into this topic. I've been amazed
    at how much energy and enthusiasm people have for telling me about the
    new way they found to use up wrinkled tomatoes, or the effort they made
    to wrap up the leftovers from their office lunch.
        And because there are direct savings to be had, this enthusiasm has
    extended to the business and entrepreneurial communities as well. I
    know subsequent witnesses will cite several examples, but here are a
    few to consider:

       Still in its relatively early stages, a program by Compass
            Group called Imperfectly Delicious Produce has sourced almost a
            million pounds of off-grade product for use in over 24
            states.\12\
    ---------------------------------------------------------------------------
        \12\ Claire Cummings, Bon Appetit Management Company (Compass
    Subsidiary), e-mail correspondence, January 20, 2016.

       Founded in 1994, Alaska-based nonprofit SeaShare,
            redistributes bycatch and donations of first rate seafood to
            food banks. The group had donated more than 200 million seafood
            servings as of 2015.\13\
    ---------------------------------------------------------------------------
        \13\ SeaShare website, About page: https://www.seashare.org/about.

       LeanPath software helps cafeteria kitchen managers track
            waste and regularly sees reductions of over 50 percent in
            kitchen waste in the first 6 to 12 months of use.\14\
    ---------------------------------------------------------------------------
        \14\ Andrew Shakman, CEO, LeanPath, e-mail correspondence, May 21,
    2016.

       In 2014, Wal-Mart changed its method of addressing egg
            cartons with single broken eggs and as a result saved over 37
            million eggs in the first 8 months after the change.\15\
    ---------------------------------------------------------------------------
        \15\ Anna Vinogradova, Senior Manager of Sustainability, Wal-Mart,
    e-mail correspondence, March 17, 2016.

       In England, a 5 year public campaign from 2007-2012 to
            reduce food waste saw a 21 percent reduction in avoidable
            household food waste.\16\ While this coincided with the
            recession, they estimate about 60 percent of the reduction was
            due to the campaign itself.\17\
    ---------------------------------------------------------------------------
        \16\ WRAP UK, ``Household Food and Drink in the UK 2012'' http://
    www.wrap.org.uk/content/household-food-and-drink-waste-uk-2012.
        \17\ Parry, Andrew, ``Reduction in household food & drink waste--
    Estimating the influence of WRAP and its partners.'' 2011.
    ---------------------------------------------------------------------------
    Addressing Data Needs
        Right now, we can't answer some basic questions around food waste
    because we simply don't have the information. While we can infer, we
    don't have concrete answers to questions such as:

       How much food goes to waste on farms?

       How much food goes to waste in restaurants, particularly on
            people's plates?

       What is the biggest reason people waste food in their homes?

        In fact, I can't even give you a pie chart that accurately breaks
    down the portions of food waste caused by each sector within the food
    industry. People have taken stabs at this--most notably, the ReFED
    report you'll hear about later and, for portions of the supply chain,
    the USDA--but there is no comprehensive study from farm to fork, and
    certainly not at the level of detail necessary to really highlight
    solutions.
        There is a particular dearth of data at the farm level, where only
    a handful of small studies have been conducted, none of which are
    comprehensive or statistically significant. And yet, anecdotally, those
    studies are finding that anywhere from one to 30 percent of fresh
    produce is not leaving the farm or packing shed.
        Other areas that are poorly understood are homes and restaurants.
    USDA conflates these two categories into one, which makes the data so
    broad that it is helpful in identifying solutions.
        You can't manage what you don't measure. Good data enables
    baselines to be set, measures progress, and informs where programs and
    projects should be directed in order to have greatest impact. At the
    business level, data can inform specific changes that lead to less
    waste.
        A key first step in addressing the issue, therefore, is to conduct
    further study and drive more data collection. Three methods to get
    started include:

       Direct research or target existing grant funds towards this
            type of research.

       Encourage measurement and reporting at the municipal levels
            by establishing a standard protocol for municipalities to
            follow and then aggregate municipal information at the Federal
            level. This will help identify the most appropriate Federal
            legislative solutions.

       A final method to improve data around food waste is to
            encourage corporate reporting of food waste. Establishing a
            culture of measurement and reporting among companies will
            facilitate benchmarking, encourage best practice, and allow
            leaders to be rewarded.
    Addressing Consumer Waste
        Engaging the public is critical because (1) much of the waste
    occurs in households and by consumers in restaurants, and addressing it
    will require a change in consumer behavior; (2) consumer expectations
    drive many of the business practices that lead to waste, so changing
    those expectations could allow social license for businesses to change
    those practices; and (3) engaging the public can also channel
    individuals to impact change through their work or other spheres of
    influence, be they restaurant workers or college educators.
        The Ad Council and NRDC recently launched the Save the Food
    national public service campaign with a TV spot, out of home materials
    (billboards, bus shelters, etc.), printing, digital, and a website.
    However, additional funds could extend the reach of the campaign
    significantly--to children, to those who speak other languages, and to
    those who suffer from food insecurity, to name just a few examples.
    Providing this funding would truly catalyze a shift in the cultural
    paradigm around food waste. As noted above, a similar campaign in the
    UK saw avoidable household food waste reduced by 21% in just 5 years.
        Educating children is another critical step in creating an engaged
    public. This can be done through cafeteria programs, curriculum
    materials, and farm-to-school and school garden programs. In addition,
    teaching basic cooking skills in schools (K-12 and university) would
    provide the critical kitchen skills necessary for wasting less food in
    one's home.
        Standardizing food date labels is another opportunity to address
    consumer household waste.
    Standardizing Food Date Labels
        Up to 86 percent of consumers at least occasionally discard food
    prematurely because they misinterpret dates to mean the food is unsafe
    to eat.\18\ This confusion extends to businesses who also wind up
    discarding perfectly edible food. Refining and standardizing the system
    of date labeling on food offers one of the most concrete steps to
    quickly reducing the amount of edible food being thrown out both in
    households and businesses.
    ---------------------------------------------------------------------------
        \18\ Food Marketing Institute, ``U.S. Grocery Shoppers Trends
    2014'', p. 135.
    ---------------------------------------------------------------------------
        The recent Food Date Labeling Act introduced by Rep. Chellie
    Pingree (H.R. 5298) does just this. It establishes a nationwide
    standard for two types of dates--one to indicate the date relates to a
    product's quality and the other to indicate consuming food after the
    date may create a risk related to people's safety. Standard phrases and
    definitions should be established for both. Once created, sale of
    products after the quality date should be allowed without repercussion.
        After this new system is established, a widespread consumer
    campaign should be conducted to educate consumers on the new
    standardized system/meaning.
    Reducing Farm Losses
        For fruits and vegetables, farms merit particular attention because
    they represent a significant portion of food losses and also an
    opportunity to provide more healthy food. A key step in this is
    supporting transportation and value-added processing of imperfect
    produce, surplus No. 1 product, and byproducts. This can be done
    through grant set asides, financing, or Federal loan guarantees for
    equipment.
    Encourage Innovation
        Encouraging creativity in the entrepreneurial space could add a
    suite of new solutions to reducing food waste. As this is a relatively
    new area of focus for the food sector, the timing is opportune. There
    is now a wonderful amount of energy and excitement to improve upon the
    current situation. Creating set asides for projects that target food
    waste reduction in current grant programs, such as USDA's Conservation
    Innovation Grants or Specialty Crop Block Grants, could help identify
    new, scalable solutions for the issue. Furthermore, technical
    assistance and low interest financing could help solutions scale.
    Encouraging Diversion of Food Scraps
        Directing food scraps to composting, anaerobic digestion, and other
    organics recycling options creates a number of environmental benefits,
    including reducing the amount of methane-generating material in
    landfills, while offering opportunities to create useful soil
    amendments, recycle nutrients, and extract energy. In addition to
    driving composting and other organics recycling, policies that
    disincentivize organics from going to landfills and incineration help
    drive prevention, partially because they increase awareness of just how
    much is being thrown out.
        Massachusetts, Connecticut, Vermont, Rhode Island, and California
    currently have some level of ban or restriction on food scraps in
    landfills or incinerators. Providing infrastructure financing for
    composting and anaerobic digestion only to states with these types of
    restrictions or bans would encourage other states to follow suit, while
    also funding the infrastructure critical to making these bans work.
    In Conclusion
        Reducing food waste may feel complicated because it touches every
    part of the food system. However, there are a number of clear steps
    that can be taken immediately to make a real dent.
        The Food Recovery Act introduced by Rep. Chellie Pingree (H.R.
    4184) tackles food waste from a variety of angles and includes
    solutions for many of the issues discussed above. I urge you to
    consider that legislation as your discussions move forward.
        Wasting less food is something everyone can get behind. No one
    wants to see good food going to waste and, in some cases, there is even
    money to be saved. I expect should you pursue solutions to this
    problem, you'll find there is a broad base of support behind you.
    Furthermore, every bit saved helps, so even some action can be
    considered successful.
        Thank you for the opportunity to discuss this issue with you today.

        The Chairman. Thank you, Ms. Gunders.
        Mr. Fink, 5 minutes.

      STATEMENT OF JESSE M. FINK, MANAGING DIRECTOR, MissionPoint
      PARTNERS LLC, NORWALK, CT; ON BEHALF OF ReFED: RETHINK FOOD
                    WASTE THROUGH ECONOMICS AND DATA

        Mr. Fink. Thank you, Chairman Conaway, Ranking Member
    Peterson, and the entire House Agriculture Committee, for the
    opportunity to testify today. I am honored.
        My name is Jesse Fink, and I am here as a representative of
    the ReFED multi-stakeholder food waste initiative. I would like
    to dedicate my testimony to my wife, Betsy Fink, a farmer, like
    many Members of Congress who have committed their lives to
    growing food. I also would like to dedicate the testimony to
    the 50 million Americans who struggle with hunger. In a
    resource-endowed country like ours, we should be able to
    conquer hunger, conserve fresh water, and create new jobs
    through the new food waste innovation.
        My journey to become a food waste evangelist has been long,
    and shaped by my career as an entrepreneur, a farmer, an
    investor, and a philanthropist. Twenty years ago, I helped co-
    found Priceline.com, a business model innovation powered by the
    Internet, linking perishable airline seats with consumers
    looking for cheaper tickets.
        For the past decade, Betsy and I have learned firsthand how
    challenging and rewarding it is to be a farmer. Similar to
    Priceline, we see valuable perishable products going to waste.
        Two years ago, we asked the team at Mission Point Partners
    to develop a strategy to address the food waste issue
    systematically, focusing on the most cost-effective and
    scalable solutions. The huge gap in data needed for solution
    identification was apparent. What resulted was the creation of
    ReFED, a nonprofit initiative that recently released a Roadmap
    to Reduce U.S. Food Waste by 20%, in conjunction with Deloitte
    Consulting and RRS. ReFED built an advisory council of over 30
    leading organizations committed to solving food waste. This
    includes farmers, manufacturers, retailers, waste haulers,
    foundations, nonprofits, and government leaders, many who are
    represented here today.
        Addressing food waste can help solve three of our nation's
    largest problems. First and foremost is hunger. Our research
    found that solutions feasible today could nearly double the
    amount of food donated from businesses to hunger relief
    organizations. Second is economic development. Reducing food
    waste boosts the economy, with a conservative estimate of
    15,000 jobs created from innovation. In addition, solutions
    available today can create $100 billion of net economic value
    over the next decade. This includes $6 billion in annual
    savings for consumers, $2 billion in annual potential profit
    for businesses, and a reduced burden on taxpayers, including
    lower municipal disposal costs. Much of this economic
    development will go towards food recovery, composting, and
    anaerobic digestion infrastructure. Last, is the environment.
    Commonsense food waste solutions will conserve up to 1.5
    percent of our country's fresh water, and this is lost on
    farms. In addition, reducing food waste will decrease methane
    emissions from landfills, and increase the health of our soils
    through composting.
        Four crosscutting actions are needed to quickly cut 20
    percent of waste, and put the U.S. on track to achieve the
    broader USDA/EPA goal of a 50 percent food waste reduction by
    2030.
        First, education. For consumers and for employees of food
    businesses. Second, innovation. ReFED has an innovation
    database of over 200 companies. Incubators, accelerators, and
    large companies are supporting entrepreneurs. There is also an
    opportunity for government mechanisms to support their
    ingenuity.
        Right here in Washington, D.C., companies like Misfit
    Juicery, Fruitcycle, and Hungry Harvest are examples of
    startups that utilize produce that would typically go to waste.
        Next is financing. The ReFED Roadmap highlights that we
    need the full spectrum of capital, including philanthropic
    grants, government incentives, and private investment to
    accelerate the transition to a low-waste economy. Financing
    innovation is required to galvanize the $18 billion needed to
    achieve a 20 percent reduction in food waste nationwide. There
    are opportunities to explore public-private partnerships,
    innovative impact investing to support companies expanding
    local energy infrastructure or composting facilities, and
    government funding for research into early-stage technologies.
        Last, is policy. Food waste is a complex issue, but three
    Federal policy priorities stand out as highly impactful and
    achievable today. First, make it easier for food businesses to
    donate food for the hungry. Second, standardize date labeling
    through legislation or voluntary industry action. And finally,
    strengthen incentives and procurement for food waste solutions
    at the local level, such as tax incentives for composting and
    anaerobic digestion.
        I would like to close by emphasizing that there is a huge
    momentum and growing awareness around the issue of food waste.
    The time is now for our country to embrace this solvable
    problem, and by working together, turn it into an opportunity.
    We can take steps to alleviate hunger, boost our economy, and
    preserve our great natural resources.
        I thank you for the opportunity to testify, and I look
    forward to your questions.
        [The prepared statement of Mr. Fink follows:]

     Prepared Statement of Jesse M. Fink, Managing Director, MissionPoint
       Partners LLC, Norwalk, CT; on Behalf of ReFED: Rethink Food Waste
                           Through Economics and Data
        Thank you Chairman Conaway, Ranking Member Peterson, and the entire
    House Agriculture Committee for the opportunity to testify today, I am
    honored.
        My name is Jesse Fink, and I am here as a representative of the
    ReFED multi-stakeholder food waste initiative. I would like to dedicate
    my testimony to my wife Betsy Fink, a farmer like many Members of
    Congress who have committed their lives to growing food. I also would
    like to dedicate this testimony to the 50 million Americans who
    struggle with hunger. In a resource endowed country like ours, we
    should be able to conquer hunger, conserve fresh water, and create new
    jobs through food waste innovation.
        My journey to become a food waste evangelist has been long, and
    shaped by my career as an entrepreneur, a farmer, an investor, and a
    philanthropist. Twenty years ago I helped co-found Priceline.com, a
    business model innovation powered by the Internet linking perishable
    airline seats with consumers looking for cheaper tickets.
        For the past decade, Betsy and I have learned first-hand how
    challenging and rewarding it is to be a farmer. Similar to Priceline,
    we see valuable, perishable products going to waste. Two years ago we
    asked the team at MissionPoint Partners to develop a strategy to
    address the food waste issue systematically, focusing on the most cost
    effective and scalable solutions. The huge gap in data needed for
    solution identification was apparent.
        What resulted was the creation of ReFED, a nonprofit initiative
    that recently released a Roadmap to Reduce U.S. Food Waste by 20% in
    conjunction with Deloitte Consulting and RRS. ReFED built an advisory
    council of over 30 leading organizations committed to solving food
    waste. This includes farmers, manufacturers, retailers, waste haulers,
    foundations, nonprofits, and government leaders.
        Addressing food waste can help solve three of our nation's largest
    problems.

       First, and foremost, is Hunger--Our research found that
            solutions feasible today could nearly double the amount of food
            donated from businesses to hunger relief organizations.

       Second is Economic Development--Reducing food waste boosts
            the economy, with a conservative estimate of over 15,000 jobs
            created from innovation. In addition, solutions available today
            can create $100 billion of net economic value over the next
            decade. This includes $6 billion in annual savings for
            consumers, $2 billion in increased annual profit potential for
            businesses, and a reduced burden on taxpayers, including lower
            municipal disposal costs. Much of this economic development
            will go towards food recovery, composting, and anaerobic
            digestion infrastructure.

       Last is the Environment--Commonsense food waste solutions
            will conserve up to 1.5% of our country's freshwater use, or
            1.6 trillion gallons per year currently lost on farms. In
            addition, reducing food waste will decrease methane emissions
            from landfills and increase the health of our soils through
            composting.

        Four crosscutting actions are needed to quickly cut 20% of waste
    and put the U.S. on track to achieve the broader USDA/EPA goal of a 50%
    food waste reduction by 2030.

       First, Education for consumers, and employees of food
            businesses.

       Second, Innovation--ReFED has an innovation database of over
            200 companies. Incubators, accelerators and large companies are
            supporting entrepreneurs. There is also an opportunity for
            government mechanisms to support their ingenuity. Right here in
            Washington, D.C., companies like Misfit Juicery, Fruitcycle,
            and Hungry Harvest are examples of start-ups that utilize
            produce that would typically go to waste.

       Next is, Financing--The ReFED Roadmap highlights that we
            need the full spectrum of capital, including philanthropic
            grants, government incentives, and private investment to
            accelerate the transition to a low waste economy. Financing
            innovation is required to galvanize the $18 billion needed to
            achieve a 20% reduction in food waste nationwide. There are
            opportunities to explore public-private partnerships;
            innovative impact investing to support companies expanding
            local energy infrastructure or composting facilities; and
            government funding for research into early stage technologies.

       Last is, Policy--Food waste is a complex issue, but three
            Federal policy priorities stand out as highly impactful and
            achievable today. First, make it easier for food businesses to
            donate food for the hungry. Second, standardize date labeling
            through legislation or voluntary industry action. Finally,
            strengthen incentives and procurement for food waste solutions
            at the local level, such as tax incentives for composting and
            anaerobic digestion projects to accelerate economic growth.

        I would like to close by emphasizing that there is huge momentum
    and growing awareness around the issue of food waste. The time is now
    for our country to embrace this solvable problem and, by working
    together, turn it into an opportunity. We can take steps to alleviate
    hunger, boost our economy and preserve our great natural resources.
        Thank you for the opportunity to testify. I look forward to your
    questions.
                                 Attachment 1.
    A Roadmap to Reduce U.S. Food Waste by 20 Percent *
        ReFED: Rethink Food Waste Through Economics and Data, http://
    www.refed.com/.
    ---------------------------------------------------------------------------
        * The report referred to is retained in Committee file. Editor's
    note: the hyperlink to download the full report is: https://
    www.refed.com/downloads/ReFED_Report_2016.pdf.
    ---------------------------------------------------------------------------
                                  Attachment 2
    A Roadmap to Reduce U.S. Food Waste by 20 Percent_Executive Summary
    2016
    Foreword
    The Journey Starts Now
        By 2050, it is estimated that the Earth's population will top nine
    billion. This growing population will undeniably stress our food
    systems, natural resources, and ecosystems. But consider this:
    Currently, we waste up to 40% of our food globally. In the United
    States, this equals roughly 400 pounds annually for every American.
    Meanwhile, one in seven Americans are food-insecure.

              We are grateful to everyone who contributed to the creation
            of ReFED and this Roadmap, especially our philanthropic co-
            funders and Advisory Council members. We would also like to
            strongly acknowledge the pioneers in food waste reduction who
            have dedicated time and great passion to this issue. Many have
            worked for years at the grassroots, national, and international
            levels to pave the way for this effort. And we'd like to thank
            you, the reader, for engaging in this issue. Together, with the
            steps laid out in this report, we can cut food waste by 20%
            with actions that are feasible today, which will set us on the
            path to meet the U.S. Government's target of a 50% reduction in
            food waste by 2030.

        These stunning facts--partnered with seeing waste occur firsthand
    through our work with our operating farm and the restaurants and
    grocery stores it services--really brought this issue home for us. This
    prompted us as philanthropists and a family concerned about healthy
    communities and ecological sustainability to ask our team to explore
    the topic of wasted food.
        Through our family foundation, we have been focused on solving
    large-scale environmental issues with market-based solutions since
    2001. We started by looking at how funding solutions to climate change,
    both through grants and impact investments, can play an important role
    in transitioning our society to a low-carbon economy.
        Over the past 15 years, we've seen how climate change and resource
    utilization are closely linked, and food is one of the most important
    resources in that equation. This puts food waste squarely at the center
    of many global challenges. Reducing food waste would have a game-
    changing impact on natural resources depletion and degradation, food
    insecurity, national security, and climate change. As one of the
    largest economies and agricultural producers in the world, we believe
    the United States has a major role to play in setting an example and
    contributing to significant food waste reduction.
        Last year, we approached like-minded philanthropists to join us in
    launching ReFED: ``Rethinking Food Waste through Economics and Data: A
    Roadmap to Reduce Food Waste'' to map a path for action and solutions.
    We knew from the start that a multi-stakeholder approach was needed so
    we invited leading food businesses, environmental and hunger
    organizations, investors, policymakers, and innovators to join the
    effort.
        The economic analysis and research we undertook revealed exciting
    news: Food waste is a solvable problem. But four priority actions are
    needed to reach significant reductions. First, we must galvanize
    hundreds of millions of dollars of new catalytic funding. Second,
    policymakers must make pragmatic changes to tax incentives, safety
    regulations, and permitting procedures to support healthy market
    solutions. Third, America must unleash its spirit of innovation to
    develop new technology and business-model innovations. Finally, a
    sweeping education and awareness campaign is needed to change behavior
    both among consumers and employees of food businesses.
        This Roadmap report is a guide and a call to action for us to work
    together to solve this problem. Businesses can save money for
    themselves and their customers. Policymakers can unleash a new wave of
    local job creation. Foundations can take a major step in addressing
    environmental issues and hunger. And innovators across all sectors can
    launch new products, services, and business models. There will be no
    losers, only winners, as food finds its way to its highest and best
    use.
        The Roadmap is just the beginning. In order to succeed, we need to
    crowdsource even more information and solutions. ReFED has welcomed
    input at every stage and encourages input now. After reading the
    Roadmap, we encourage you to visit refed.com, dig deeper into our
    analysis, and send us your ideas and feedback.
        This is a defining moment for us all. Let's start the journey now.
                Thank you,

            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Betsy and Jesse Fink,
    Trustees,
    The Fink Family Foundation.
    About the Roadmap
        The magnitude of the food waste problem is difficult to comprehend.
    The U.S. spends $218 billion a year--1.3% of GDP--growing, processing,
    transporting, and disposing of food that is never eaten. The causes of
    food waste are diverse, ranging from crops that never get harvested, to
    food left on overfilled plates, to near-expired milk and stale bread.
        ReFED is a coalition of over 30 business, nonprofit, foundation,
    and government leaders committed to building a different future, where
    food waste prevention, recovery, and recycling are recognized as an
    untapped opportunity to create jobs, alleviate hunger, and protect the
    environment--all while stimulating a new multi-billion dollar market
    opportunity. ReFED developed A Roadmap to Reduce U.S. Food Waste as a
    data-driven guide to collectively take action to reduce food waste at
    scale nationwide.
    Key Benefits
        The Roadmap outlines an actionable path to cutting U.S. food waste
    by over 20%-13 million tons annually--while generating $100 billion of
    economic value over the next decade and creating 15,000 new jobs. The
    Roadmap is projected to generate the following benefits:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              * Jobs and environmental benefits not included in $100B
            calculation. Jobs created is a total number, not annual new
            jobs. Investment and Economic Value were calculated over a
            decade.
    Call to Action
        These benefits are achievable, feasible, and realistic today, but
    they will not be achieved without a concerted effort. Stakeholders must
    commit to four levers of action: new financing to scale proven
    solutions, commonsense policy change, adoption of emerging innovations,
    and consumer and employee education.
        Overall the Roadmap will require nearly $18 billion of new
    investment over a decade, amounting to less than \1/10\ of a penny for
    every pound of food waste diverted from landfill. To unlock this
    financing, $100 to $200 million of catalytic financing is needed
    annually to overcome bottlenecks through flexible grants, impact
    investments, and low-cost project finance.
        The Roadmap shows how we can take steps today to cut food waste by
    20%, putting the U.S. on a path to achieve the broader national target
    of a 50% reduction by 2030.
    Key Stakeholder Actions
        Reaching the goals outlined in the Roadmap will require a
    collaborative effort from organizations throughout the food value
    chain.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Farmers: Seek to reduce the 10 million tons of unharvested food
                lost each year by developing secondary markets for
                Imperfect Produce and further leveraging Value-Added
                Processing.

             [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Manufacturers: Reduce inefficiencies in manufacturing processes
                while collaborating with retailers on Packaging Adjustments
                and Standardized Date Labeling.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Restaurants & Foodservice: Save up to $1.6 billion in food
                purchasing costs by further adopting Waste Tracking &
                Analytics across all facilities, incorporating Imperfect
                Produce into menus, and integrating Smaller Plates and
                Trayless Dining in all-you-can-eat facilities.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Grocery Retailers: Market discounted Imperfect Produce, continue
                to adopt Improved Inventory Management systems and Spoilage
                Prevention Packaging, and collaborate to Standardize Date
                Labeling to benefit consumers.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Federal Government: Create jobs and alleviate hunger by retaining
                and expanding food Donation Tax Incentives, and consider
                national Standardized Date Labeling legislation.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          State And Local Government: Continue to support landfill or
                commercial food waste bans, reduce permitting barriers for
                Centralized Compost and Anaerobic Digestion (AD), and
                implement consistent rules for Standardized Donation
                Regulation across states.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Foundations & Nonprofits: Support major Consumer Education
                Campaigns, build multi-stakeholder efforts for Standardized
                Date Labeling and employee education on best practices, and
                fund food donation and recycling infrastructure.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Investors: Provide dedicated funds that offer flexible project
                finance for Centralized Compost and AD facilities, as well
                as early stage and growth equity to scale emerging
                innovations.
    Food Waste Overview
        Food waste occurs throughout the supply chain. Upstream, waste
    begins at farms and food manufacturing businesses, where it is
    typically left in fields to be tilled over or converted into animal
    feed.
        Yet over 80% of waste occurs downstream within consumer-facing
    businesses--grocery stores, restaurants, and institutional
    foodservice--and homes, where current recovery and recycling rates are
    estimated to be only 10%.
        Of the $218 billion spent each year on food that is never eaten,
    roughly \2/3\ is spent by consumers. This is due to high volumes of
    uneaten food, the high cost to purchase food at retail, and the high
    value of meat--a popular family purchase item. Almost \4/5\ of food
    waste stems from perishables, primarily fruits and vegetables, because
    they are inexpensive and quickly go bad.

    ------------------------------------------------------------------------

    -------------------------------------------------------------------------
                                 Key Definition

        Food Waste--Any food that is grown and produced for human
     consumption but ultimately is not eaten.
    ------------------------------------------------------------------------

    Economic Analysis
        The Roadmap analysis included a four-step process: Baseline
    Definition, Solutions Evaluation, Data Analysis, and Data Validation.
    Baseline Definition
        Prior estimates of food waste in the U.S. have ranged from 35
    million tons (EPA) to 103 million tons (FAO) per year, depending on
    scope and methodology. ReFED collected one of the broadest sets of data
    to date to establish a map of where food is wasted.
        ReFED determined that the baseline amount of U.S. food waste today
    is approximately 62.5 million tons annually: 52.4 million tons disposed
    annually in landfills and incinerators and 10.1 million tons of on-farm
    waste from unharvested crops and packhouses.
    Solutions Evaluation
        A wide list of food waste solutions was gathered from stakeholders
    and narrowed to 27 priority solutions that met criteria around data
    availability, cost-effectiveness, feasibility, and scalability. ReFED's
    analysis follows the EPA Food Recovery Hierarchy, which prioritizes
    prevention, recovery, and then recycling solutions to maximize
    benefits.

       Prevention keeps waste from occurring in the first place.

       Recovery uses donations from food businesses to feed the
            hungry.

       Recycling transforms food scraps into value-added products
            instead of landfilling.

                              Food Waste Solutions
    ------------------------------------------------------------------------
                                                       Priority Food Waste
            Type                  Category                  Solutions
    ------------------------------------------------------------------------
    Prevention           1. Packaging, Product,      Standardized
                          and Portions               Date Labeling
                                                     Produce
                                                     Specifications
                                                     (Imperfect Produce)
                                                     Packaging
                                                     Adjustments
                                                     Spoilage
                                                     Prevention Packaging
                                                     Smaller Plates
                                                     Trayless Dining
                         2. Operational and Supply   Waste Tracking
                          Chain Efficiency           & Analytics
                                                     Improved
                                                     Inventory Management
                                                     Cold Chain
                                                     Management
                                                     Manufacturing
                                                     Line Optimization
                                                     Secondary
                                                     Resellers
                         3. Consumer Education       Consumer
                                                     Education Campaigns
    ------------------------------------------------------------------------
    Recovery             4. Donation Policy          Donation Tax
                                                     Incentives
                                                     Standardized
                                                     Donation Regulation
                                                     Donation
                                                     Liability Education
                         5. Donation                 Donation
                          Infrastructure             Matching Software
                                                     Donation
                                                     Storage & Handling
                                                     Donation
                                                     Transportation
                                                     Value-Added
                                                     Processing
    ------------------------------------------------------------------------
    Recycling            6. Agricultural Products    Centralized
                                                     Composting
                                                     Home Composting
                                                     Community
                                                     Composting
                                                     Animal Feed
                         7. On-site Business         In-Vessel
                          Processing                 Composting
                                                     Commercial
                                                     Greywater
                         8. Energy & Digestate       Centralized
                                                     Anaerobic Digestion
                                                     (AD)
                                                     WRRF with AD
    ------------------------------------------------------------------------

    Data Analysis
        The Roadmap includes three analyses of the 27 solutions: Marginal
    Food Waste Abatement Cost Curve, Business Profit Potential, and Non-
    Financial Impacts.
    Marginal Food Waste Abatement Cost Curve (``Cost Curve'')
        The Cost Curve illustrates an at-a-glance comparison of solutions
    based on the cost-effectiveness per ton of waste reduced and the
    scalability of the diversion potential. Cost-effectiveness is based on
    Economic Value--the annual aggregate financial benefit to society minus
    all investment and costs.
        Implementing the 27 solutions would deliver $10 billion of annual
    Economic Value to society. Prevention and recovery are generally
    magnitudes more cost-effective than recycling, while recycling offers
    significantly larger diversion potential.
        Why is this?

       Prevention and recovery typically require low up-front
            investment for software upgrades or packaging tweaks, while
            recycling requires higher up-front investment for large
            processing and logistics infrastructure.

       Prevention and recovery capture the high value of edible
            food, while recycling captures inedible food scraps, which are
            ten to 50 times less valuable.

       Centralized recycling projects achieve scale through large
            municipal programs that coordinate policy, collection
            infrastructure, and processing facilities.

       Prevention and recovery solutions are harder to scale
            because they require more customization and collaboration for
            each type of food business facility.
    Marginal Food Waste Abatement Cost Curve

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              * Other: Community Composting, Animal Feed, In-Vessel
            Composting.
    Business Profit Potential
        The Roadmap estimates that $1.9 billion of annual Business Profit
    Potential will come from the revenue and cost savings of implementing
    11 of the analyzed solutions.
        Restaurants and foodservice facilities can achieve the largest
    profit opportunity, $1.6 billion annually. The majority of this profit
    comes from improved Waste Tracking & Analytics, reflecting the
    operational inefficiencies in food purchasing and kitchen prep.
    Retailers and recycling developers can capture additional profit by
    finding new markets for Imperfect Produce, integrating Spoilage
    Prevention Packaging into more products, and building out dozens of new
    Centralized Composting and AD facilities.

              Restaurants and Foodservice Facilities Have The Largest
            Profit Opportunity--$1.6 Billion Annually.
    Annual Business Profit Potential ($M)

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Non-Financial Impacts
        The Roadmap focused on four of the many additional benefits of food
    waste reduction: meals recovered, jobs created, greenhouse gas
    reductions, and water conservation.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Meals: 1.8 billion meals can be recovered annually, doubling
                current donation levels of food at risk of being wasted,
                primarily through improved tax donation incentives and
                standardized safe handling regulation for donated food.
                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Jobs: 15,000 jobs can be created primarily through processing and
                applying compost. Other job creation drivers include AD
                facilities as well as food donation transportation,
                storage, and handling.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          GHGs: Nearly 18 million tons of GHG emissions may be reduced
                annually by avoiding agricultural and livestock impacts and
                reducing methane emissions from scraps disposed in
                landfills. Solutions that prevent emissions associated with
                meat production have the largest impact per ton.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Water: 1.6 trillion gallons of water annually may be able to be
                conserved--1.5% of annual U.S. freshwater withdrawals--
                primarily through the prevention of large amounts of water
                needed for agriculture.

        The Roadmap would also increase the amount of compost available to
    enrich our soils, with potential benefits ranging from enhanced water
    retention to carbon sequestration.
    Data Validation
        Over 80 experts were interviewed, and all assumptions and
    methodology were refined by a multi-stakeholder Advisory Council of
    industry leaders. Future research that integrates system
    interdependencies can enhance and refine this economic analysis, going
    forward.

    ------------------------------------------------------------------------

    -------------------------------------------------------------------------
                                 Key Definition

        Business Profit Potential is defined as the expected annual profits
     that the private sector can earn by investing in solutions after
     adjusting for initial investment required, differentiated costs of
     capital, and benefits that accrue to nonbusiness stakeholders.
    ------------------------------------------------------------------------

    Prevention
        Just as it is more cost-effective to prevent a disease than to
    treat it later, prevention is the most cost-effective strategy to
    reducing food waste. Prevention solutions have the highest cost-
    effectiveness and net environmental benefit and hold the potential to
    divert 2.6 million tons of annual waste.
        Common barriers to prevention include misalignment of costs and
    benefits between stakeholders, lack of consumer demand for waste-saving
    activities, information gaps, and organizational silos within large
    food businesses.
    Key Findings
       Prevention generally requires low levels of investment for
            behavior drivers such as packaging changes, software, and
            marketing.

       At retail, food is worth roughly $2.50 per pound, magnitudes
            higher than the value of food as crops on farms or scraps for
            disposal.

       Prevention, by avoiding unnecessary fertilizer and fuel use
            on farms, has twice the lifecycle greenhouse gas benefit per
            ton of food waste diverted compared to recycling.

        The three most scalable prevention solutions are:

       Standardized Date Labeling, which will help reduce the
            estimated 20% of consumer food waste caused by confusing ``sell
            by,'' ``best by,'' and ``use by'' labels that do little to
            indicate actual food safety risks.

       Consumer Education Campaigns, which will raise awareness and
            educate consumers about ways to save money and prevent waste.

       Waste Tracking & Analytics within more restaurants and
            commercial kitchens, which can track data on wasteful practices
            to inform behavioral and operational changes.
    Recovery
        Most people have seen perfectly good food thrown away at a
    restaurant or dinner party and wished there was a way to get it to
    people in need. Food recovery captures food donations from businesses
    and transports it to organizations that feed the hungry, such as food
    banks and soup kitchens. The Roadmap demonstrates that food recovery
    can double nationwide, increasing by roughly 1.8 billion meals (1.1
    million tons).
        Common barriers to food recovery include liability concerns among
    food businesses, fragmented food safety regulations, a lack of
    transportation and storage infrastructure capacity, and the extra
    financial burden associated with food donations. Food recovery networks
    differ widely by region and geography. Rural communities often face
    higher transportation costs to reach people in need, while urban
    communities may lack food sourcing and procurement channels from farms
    and food manufacturers. California is more likely to have surpluses of
    fruits and vegetables, while Iowa and Texas are likely to have more
    grains and meat available.
    Key Findings
       The food recovery ecosystem requires three pillars to scale:
            (1) enabling policy that financially incentivizes donations
            from businesses while providing standardized food safety
            regulations, (2) education for businesses on donor liability
            protections and safe food handling practices, and (3) logistics
            and infrastructure to transport, process, and distribute excess
            food.

       Over \1/2\ of the recovery opportunity requires tweaks to
            legislation regarding tax incentives for business donations and
            safety regulations for donated food handling.

       Nearly \1/2\ of new recovery potential comes from produce
            surpluses on farms and at packinghouses, a sector with lower
            levels of donations today than food retailers.

        The three most scalable recovery solutions are:

       Donation Tax Incentives that are sustained and expanded to
            cover all types of food businesses

       Standardized Donation Regulation that standardizes
            enforcement among local and state health departments to provide
            a common set of rules for large businesses.

       Donation Matching Software that connects individual food
            donors with recipient organizations to reach smaller-scale and
            perishable food donations.
    Recycling
        Recycling offers the most scalable path to reducing food waste
    nationally, enabling 9.5 million tons of annual waste diversion--nearly
    \3/4\ of the total Roadmap potential. Recycling food waste through
    distributed or centralized processing diverts food scraps from
    landfills and transforms it into beneficial soil amendments, clean
    biogas, or animal feed.
        Municipalities have increased interest in food waste recycling due
    to shrinking landfill capacity, improving economics, and greater
    awareness of positive environmental impacts. Many programs are driven
    by state and local policies, including landfill bans, renewable energy
    incentives, and direct economic incentives. Food waste is typically
    combined with other organics recycling programs such as lawn clippings
    and manure.
        A municipal recycling program depends on three elements to remain
    healthy: homes and businesses that consistently put food scraps into
    separate bins, haulers that have enough economic incentive to pick up
    separate loads of food scraps and deliver them to recycling facilities,
    and processing facilities that remain profitable through sufficient
    access to feedstock material, financing, and end markets.
    Key Findings
       The Northeast, Northwest, and Midwest generally show the
            most potential for Economic Value from recycling due to high
            disposal fees and high compost and energy market prices.

       Including the non-financial job and environmental benefits
            of large compost and AD projects into municipal cost-benefit
            analyses will help more projects to be built.

       The top three levers to scale recycling are an increase in
            landfill disposal costs, efficiencies in hauling and collection
            through closer siting to urban centers, and denser routes.

       Other key bottlenecks to overcome are high up-front project
            costs (particularly for AD facilities), low pricing for biogas
            and compost, assurance of material supply, packaging that
            contaminates the waste supply, and permitting and siting of
            processing facilities.

        The three most scalable recycling solutions are:

       Centralized Composting, which can divert the most waste of
            any solution but will require an increase in compost demand for
            agricultural and environmental remediation to match the boost
            in supply.

       Centralized Anaerobic Digestion (AD) that harnesses the
            energy in food scraps for electricity or transportation and
            provides a digestate that can enhance soils.

       Water Resource Recovery Facilities (WRRF) with AD that
            utilize existing wastewater infrastructure to accept additional
            waste delivered by truck or through existing sink disposal
            pipes.
    The Path Ahead
        The Roadmap demonstrates that achieving a 20% reduction in food
    waste will generate a positive financial, social, and environmental
    return on investment. But it will not happen without a concerted effort
    to galvanize action across four areas: financing, policy, innovation,
    and education. This section outlines the resources needed to enable a
    20% reduction, as well as the biggest opportunities to reach a broader
    50% goal.
    Financing
        The Roadmap will require $18 billion of investment to implement
    within a decade, or roughly $2 billion per year, which costs less than
    \1/10\ of a penny per pound of food waste reduced. This one-time
    investment is projected to yield roughly $100 billion in societal
    economic value over the same period. Key financial benefits include a
    reduction in consumer food bills, increased business profit, and a
    reduced tax burden for municipalities from lower landfill disposal
    fees.
        Most of this funding will flow naturally from market forces or the
    extension of existing government programs. The $18 billion can be
    broken out into private, philanthropic, and government sources.
        Private investment of $6.6 billion is expected to flow to
    opportunities that offer a compelling risk-adjusted return. The largest
    portion is expected from internal corporate capital expenditures on
    solutions such as Secondary Resellers, Packaging Adjustments, or
    Smaller Plates in dining facilities. Additional private capital is
    needed for private venture and growth equity to fund and scale
    businesses that provide emerging solutions. Private project equity and
    debt will be needed mainly for large recycling facilities.
        Government support of $8.2 billion is expected mainly via existing
    legislation. Most of this funding consists of tax incentives over the
    next decades to incentivize food businesses to increase their rate of
    food donations. In addition, nearly a billion dollars of public project
    finance is needed to stimulate projects that have a strong social
    benefit, such as WRRF with AD and Community Composting.
        Finally, philanthropic funding of roughly $3 billion is needed to
    fund solutions that create public benefits or have costs and benefits
    that accrue to different organizations. Of this funding, nearly a
    billion dollars of impact investments, a major source of catalytic
    financing, is needed in the form of low-interest loans and high-risk
    equity investments. Catalytic financing will serve a critical role to
    overcoming system-level bottlenecks, derisking new innovations or novel
    projects, overcoming agency problems, and stimulating projects with
    marginal economics.

              Big Financing Opportunity--Form new impact investment funds
            to galvanize investment in food waste reduction solutions while
            better incorporating social and environmental benefits into
            government budgeting.
    Financing Needs for 20% Reduction in Food Waste Over a Decade

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Policy
        The Roadmap was framed to focus on solutions that can scale under
    existing policy or with only minor adjustments. The near-term priority
    should focus on three policies:

       Donation Tax Incentives--Maintain and build upon the recent
            expansion of permanent Federal food donation tax incentives for
            all farms and food businesses.

       Food Donation Regulation--Create a common standard of safe
            handling practice regulations among state and local health
            departments.

       Recycling Best Practices--Spread best practices to encourage
            recycling, such as streamlined permitting of processing
            facilities, improved enforcement of waste bans, and expanded
            incentives to encourage diversion of food waste from landfills.

        Ten Roadmap solutions could be further enhanced through
    standardized policies at the Federal level.

              Big Policy Opportunity--Pass comprehensive Federal food waste
            legislation that ties together nearly a dozen individual
            policies and signals a market shift to food businesses.
    Innovation
        At a high level, there are five priority categories of technology
    innovation that can drive the greatest impact on food waste reduction:

       Packaging and labeling.

       IT-enabled transportation and storage.

       Logistics software.

       Value-added compost products.

       Distributed recycling solutions

        In addition to technology innovations, business-model innovations
    are needed to develop new ways to share risk across the supply chain in
    novel ways.
        Incremental innovation will lower the cost and improve the
    performance of many Roadmap solutions. Advancements in materials will
    drive innovation around packaging, while new mobile apps will improve
    the effectiveness of Consumer Education Campaigns and Donation Matching
    Software. Numerous plant-level innovations around Centralized
    Composting and AD will drive down processing costs and improve the
    quality of outputs.
        Over \1/3\ of Roadmap solutions have the potential for disruptive
    innovations that can further expand their potential beyond the
    projections in this report. The food technology innovation sector is
    growing rapidly, with new food incubators and investment funds emerging
    each month. By focusing this entrepreneurial energy to solve the
    biggest barriers inhibiting food waste reductions, top priority
    innovations can be accelerated into the market.

              Big Innovation Opportunity--Build a network of food waste
            innovation incubators across the U.S. with dedicated funding,
            mentorship, and facilities to achieve technology and business-
            model breakthroughs across five priority innovation areas.
    Education
        The large number of Roadmap barriers that are behavioral in nature
    highlights the need for education, training, and capacity-building to
    enable change at scale. Behavior change is needed for two core groups:
    consumers and employees.
        Consumer Education Campaigns is one of the most cost-effective and
    scalable Roadmap solutions because it directly influences food
    purchasing and eating behaviors. Consumer education is also critical to
    spurring consumer demand for smarter offerings at grocery retailers and
    restaurants, including Standardized Date Labeling, Spoilage Prevention
    Packaging, Imperfect Produce, and Trayless Dining.
        In 2016, NRDC and the Ad Council will launch the first widespread
    public service campaign promoting food waste awareness, similar to a
    program launched in the UK in recent years. This campaign must be
    expanded, measured, and improved over time.
        For food businesses, half of ReFED's solutions require hands-on
    employee involvement in day-to-day execution, which is challenging
    given high turnover rates in the sector. Training is needed to avoid
    the removal of product from shelves when it is still safe and edible,
    identify food that can be donated, and properly source-separate scraps
    to remove contaminants for recycling. The quickest path to widespread
    employee training would be to link a new Food Waste Certification to
    existing Food Safety Certification programs, as they are already
    mandatory in many food businesses and are a top priority for management
    teams.

              Big Education Opportunity--Expand emerging efforts to achieve
            a national social-based marketing campaign that achieves
            widespread consumer awareness and behavior change in
            coordination with a national food waste employee certification
            effort.
    How To Take Action
        With this report, ReFED calls upon American businesses, nonprofits,
    government leaders, and investors to rise to the challenge and lead the
    way in transforming the management of food waste from a burden to a
    critical resource in solving society's biggest challenges.

    ------------------------------------------------------------------------

    -------------------------------------------------------------------------
        Ready to join the coalition?
        Visit ReFED.com to download the full report and find more
     information about top priority opportunities to take action today.
    ------------------------------------------------------------------------

                                  Attachment 3
    A Roadmap to Reduce U.S. Food Waste by 20 Percent_Key Insights
    2016
    Key Insights
        The Roadmap to Reduce U.S. Food Waste by 20 Percent was developed
    to identify the most cost-effective solutions to cut food waste at
    scale, to define research priorities, and to spur multi-stakeholder
    action. To download the full Roadmap, join this effort or learn more,
    go to refed.com.
    The Problem
        Today, the United States spends over $218 billion_1.3% of GDP_
    growing, processing, transporting, and disposing of food that is never
    eaten.

       Each year, 52.4 million tons of food is sent to landfill,
            and an additional 10.1 million tons remains unharvested at
            farms, totaling roughly 63 million tons of annual waste.
    The Roadmap
        ReFED envisions a future where combating food waste is a core
    driver of business profits, job creation, hunger relief, and
    environmental protection.

       The Roadmap shows an achievable path to a 20% reduction of
            food waste within a decade through 27 cost-effective, feasible,
            and scalable solutions. These solutions would divert 13 million
            tons from landfills and on-farm losses.

       Implementing the Roadmap is projected to generate 15,000 new
            jobs, double recovered food donations to nonprofits (1.8
            billion meals per year), reduce up to 1.5% of freshwater use
            (1.6 trillion gallons per year), and avoid nearly 18 million
            tons of greenhouse gas emissions annually.
    Economic Value
        The Roadmap will require an $18 billion investment, less than \1/
    10\ of a penny of investment per pound of food waste reduced, which
    will yield an expected $100 billion in societal Economic Value over a
    decade.

       The estimated funding need is $8 billion of government
            support via mostly existing legislation, $7 billion of market-
            rate private investments, and $3 billion of philanthropic
            grants and impact investments.

       Consumers will reap the biggest economic benefit, saving
            $5.6 billion annually by cutting unnecessary spending on food
            that is never eaten.

       Restaurants and foodservice providers could gain the largest
            business profit improvement--over $1.6 billion annually--by
            adopting Waste Tracking & Analytics, Smaller Plates, and other
            solutions.

       Prevention, which avoids unnecessary fertilizer and fuel use
            on farms, has twice the lifecycle greenhouse gas benefit per
            ton compared to food recycling. The prevention of unnecessary
            meat production offers the largest marginal environmental
            benefit of any category. Recycling reduces landfill methane
            emissions, while also offering the opportunity to return
            nutrients to large amounts of degraded soils.
    Prevention
        Solutions that prevent waste in businesses and homes have the
    greatest Economic Value per ton and net environmental benefit,
    diverting 2.6 million tons of annual waste.

       The top three solutions with the greatest Economic Value per
            ton all utilize prevention: Standardized Date Labeling,
            Consumer Education Campaigns, and Packaging Adjustments.

       Prevention solutions are generally capital-light; they
            involve changing behaviors through packaging changes, software,
            and marketing.

       At retail, food is worth roughly $2.50 per pound, magnitudes
            higher than the value of food scraps for disposal, providing a
            large economic driver for prevention efforts.
    Recovery
        Food recovery can increase by 1.8 billion meals annually, nearly
    doubling the amount of meals rescued today and diverting 1.1 million
    tons of waste.

       The food recovery ecosystem requires three pillars to scale:
            business education, enabling policy, and available and
            efficient transportation and cold storage.

       Over \1/2\ of the opportunity requires legislation,
            including the maintenance and expansion of tax incentives for
            business donations and the standardization of food handling
            safety regulations.

       Nearly \1/2\ of new recovery potential comes from produce
            surpluses on farms and at packinghouses, a sector with lower
            levels of donations today than food retailers.
    Recycling
        Centralized Composting and Anaerobic Digestion (AD), as well as a
    smaller set of growing distributed solutions, will enable 9.5 million
    tons of waste diversion_nearly \3/4\ of the total potential.

       Centralized Composting diverts the most waste, adding over 2
            million tons of compost annually to fuel growth in the
            sustainable farming and environmental remediation markets.

       The Northeast, Northwest, and Midwest can generally realize
            the most Economic Value from recycling due to high landfill
            disposal fees and high compost and energy market prices.

       Nearly $3 billion of investment is needed for recycling
            infrastructure, mainly for compost and AD processing and
            collection.

       Municipalities can help build more large recycling projects
            by including non-financial job and environmental benefits into
            cost-benefit analyses.

       The top levers to scale recycling beyond the Roadmap targets
            are an increase in landfill disposal costs and efficiencies in
            hauling and collection through closer siting of organics
            processing to urban centers and optimized collection routes.
            Other key bottlenecks to overcome are the high cost of project
            capital, particularly for AD facilities, and low, unstable
            pricing for biogas and compost.
    Tools for Action
        Four crosscutting actions are needed to quickly cut 20% of waste
    and put the U.S. on track to achieve a broader 50% food waste reduction
    goal by 2030.

       Financing--To overcome the bottlenecks to unlocking $18
            billion in financing, $100-$200 million annually is needed in
            catalytic grants, innovation investments, and low-cost project
            finance. Today, few investors or foundations focus explicitly
            on food waste.

       Policy--Commonsense policy adjustments are needed to scale
            Federal food donation tax incentives, standardize safe handling
            regulations, and boost recycling infrastructure by expanding
            state and local incentives and reducing permitting barriers.
            The biggest lever to accelerate change is comprehensive Federal
            legislation.

       Innovation--Key technology and business-model innovations
            are needed around packaging and labeling, IT-enabled
            transportation and storage, logistics software, value-added
            compost products, and distributed recycling. These could be
            accelerated through a national network of food waste innovation
            incubators.

       Education--Launching a widespread training effort to change
            the behavior of food business employees is critical. In
            addition, campaigns to raise food waste awareness among
            consumers need to attract additional funding and support to
            expand to the scale of anti-littering and anti-smoking efforts.

        An $18 Billion Investment in 27 Solutions To Reduce U.S. Food Waste
    by 20% Will Yield $100 Billion in Societal Economic Value Over a
    Decade.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Jobs and environmental benefits not included in $100b
            calculation.
              * Jobs created is a total number, not annual new jobs.
    Priority Stakeholder Actions At a Glance
        These Actions offer the largest opportunities for each stakeholder
    to contribute to food waste reduction, both through new initiatives and
    by expanding existing efforts. They are described in more detail
    throughout the Roadmap.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            FarmersDSeek to reduce the 10 million tons of
                            cosmetically imperfect or unharvested food lost
                            each year:

         Collaborate with food businesses to further develop a
                secondary market for Imperfect Produce.

         Leverage Value-Added Processing, both on farms and through
                partner organizations, to turn excess produce into soups or
                shelf-stable products for new profit- or donation-driven
                businesses.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            ManufacturersDExpand existing leadership in
                            repurposing excess food through multi-
                            stakeholder collaborations:

         Continue to increase efficiencies through Manufacturing
                Line Optimization to boost profits.

         Collaborate with retailers on Packaging Adjustments,
                Spoilage Prevention Packaging, and Standardized Date
                Labeling.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            Restaurants & FoodserviceDSave up to $1.6
                            billion in food purchasing costs:

         Further adopt Waste Tracking & Analytics across all
                facilities and incorporate Imperfect Produce into menus to
                reduce costs.

         Shift consumer behavior with Smaller Plates and Trayless
                Dining in all-you-can-eat facilities

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            Grocery RetailersDIncrease profits while
                            empowering customers to reduce waste:

         Boost revenues by marketing discounted Imperfect Produce,
                and continue to reduce costs by adopting Improved Inventory
                Management systems and Spoilage Prevention Packaging.

         Collaborate with retailers and manufacturers to adopt
                Standardized Date Labeling to benefit consumers.

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            Federal GovernmentDCost-effectively create jobs
                            and alleviate hunger through smart policies:

         Retain and expand Donation Tax Incentives for businesses
                that donate food.

         Introduce national Standardized Date Labeling legislation
                (if industry does not make voluntary progress).

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            State And Local GovernmentsDPursue holistic
                            approaches to waste reduction--incentivizing
                            prevention, recovery, and recycling to reduce
                            the tax burden and address food insecurity:

         Continue to support organics diversion through use of
                mandates or landfill or commercial food waste bans, reduce
                permitting barriers for compost and AD, and enforce
                programs through incentives or fines.

         Implement Standardized Donation Regulations across states.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            FoundationsDProvide the $300 million needed
                            annually to protect the environment, alleviate
                            hunger, and develop local economies:

         Provide grant funding for major Consumer Education
                Campaigns, and support multi-stakeholder efforts to enact
                Standardized Date Labeling and educate employees and others
                on best practices.

         Make grants and impact investments to support food
                donation and recycling infrastructure, including trucks,
                cold storage, IT systems, and processing facilities

                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            InvestorsDGenerate returns from an untapped $2
                            billion market opportunity:

         Provide dedicated funds that offer flexible project
                finance for compost and AD facilities.

         Provide early-stage and growth equity to scale existing
                business software solutions and innovative technologies
                that reduce the cost of prevention, recovery, and
                recycling.

        The Chairman. Thank you, Mr. Fink.
        Mr. Oxford, 5 minutes.

             STATEMENT OF JOHN OXFORD, PRESIDENT AND CHIEF
       EXECUTIVE OFFICER, L&M COMPANIES; CHAIRMAN-ELECT, PRODUCE
                   MARKETING ASSOCIATION, RALEIGH, NC

        Mr. Oxford. Chairman Conaway, Ranking Member Peterson, and
    Members of the Committee, thank you for the opportunity to
    testify at today's hearing on food waste.
        I am John Oxford, President and CEO of L&M Companies, based
    in Raleigh, North Carolina. Founded in 1964, we are a family
    agricultural business that grows, markets, and distributes
    fresh produce. Our products and our crops include a variety of
    vegetables, potatoes, onions, melons, apples, pears, and more.
        In addition to my day job, I am Chairman-elect for the
    Produce Marketing Association, which is the largest trade
    association representing companies that market fresh fruits and
    vegetables. PMA represents more than 2,700 member companies in
    45 countries. In the United States, our members throughout the
    supply chain, from growing, processing, manufacturing,
    distribution, wholesaling, retail, and food service, handle
    more than 90 percent of the fresh produce sold to consumers.
        My testimony today comes from the perspective of a grower.
    Dealing with food waste is a complex issue that requires a
    suite of solutions. When fresh produce goes to waste, we lose
    the fruits or vegetables as well as the inputs, labor, energy,
    water, and fertilizer, and if the product has been harvested,
    cooled, and transported, we lose even more. Thus, the incentive
    for producers to innovate to minimize waste and loss is
    significant. Our first preference and our goal is that fresh
    produce reaches its highest and best use: feeding people.
        At L&M, we employ a range of options for produce that is
    unmarketable as fresh to the consumer. We use several outlets
    for usable product that is not going to be sold through the
    intended channel. We regularly try to find alternative markets
    or uses, and in addition, L&M supplies hundreds of thousands of
    pounds of healthful, fresh produce every year to charities,
    including Farmers Feeding Florida, Feeding America, Operation
    Blessing, and a host of others.
        In my role as Chairman-elect of PMA, I am excited about the
    innovative approaches some of my colleagues are taking to
    further reduce food waste. In fact, most of you probably have
    one of the earliest examples of innovation to reduce food waste
    in your refrigerator at home, and we have provided some at your
    desks this morning. Baby carrots were born from a concern over
    food waste. Misshapen carrots were cut and shaped into the now-
    common baby carrots. In fact, today, baby carrots represent 70
    percent of all carrot sales, and according to a recent
    Washington Post article, this effort to reduce waste has
    actually now doubled carrot consumption.
        Recently, Sysco's produce distributor, FreshPoint,
    introduced its Unusual But Usable program. Though FreshPoint is
    a food service distributor, it partners with produce growers,
    taking ugly or imperfect produce that might otherwise go to
    waste and finds consumers interested in utilizing it. This
    reduces the waste caused by cosmetic imperfections, and the
    customers get what they want, often at a more attractive price
    point.
        Red Jacket Orchards in New York, like many apple and pear
    processors, takes the residual solids left after juicing and
    makes them into pomace cakes that can be used to feed
    livestock. This considerably reduces what goes to the landfill,
    and is an additional supply chain outlet for the grower. We
    have also supplied some samples of these cakes at your seats
    today.
        In another example, Gill Onions, a California-based
    producer and processor, installed an advanced energy recovery
    system that converts 100 percent of its daily onion residuals,
    such as juice, into renewable energy and cattle feed. Instead
    of incurring the disposal cost for its more than 300,000 pounds
    of annual onion waste, Gill Onions actually saves approximately
    $700,000 per year on energy and disposal cost, and has
    significantly reduced its environmental footprint.
        A final area I would like to address is the importance of a
    strong industry and government partnership to address food
    waste. Encouraging innovation such as new variety development
    through traditional modern breeding practices can bring us
    traits that enhance a crop's ability to withstand stresses due
    to climate and pests. Likewise, increasing fruits' and
    vegetables' shelf life, making them more durable for the
    transportation process, will reduce waste. We also need the
    Federal Government as a partner in the area of research. USDA's
    intra- and extramural research programs have done great things
    for our industry, and specialty crops in general. And last, but
    certainly not least, we need help on labor issues. Many growers
    across the U.S. find difficulty finding farm workers, and
    produce is too often left to rot in the field. I recognize this
    is a difficult issue to tackle politically, but we need
    Congress to take action.
        Significantly reducing our nation's food waste is a
    challenging endeavor. L&M and the Produce Marketing Association
    stand ready to partner with you and my fellow witnesses here
    today to move us closer to a zero waste system.
        Thank you again, Mr. Chairman, for holding this important
    hearing, and bringing the Committee's attention to these
    critical issues.
        [The prepared statement of Mr. Oxford follows:]

       Prepared Statement of John Oxford, President and Chief Executive
    Officer, L&M Companies; Chairman-Elect, Produce Marketing Association,
                                  Raleigh, NC
        Chairman Conaway, Ranking Member Peterson, and Members of the
    Committee, thank you for the opportunity to testify at today's hearing
    on food waste. I am John Oxford, President and CEO of L&M Companies
    founded in 1964 and based in Raleigh, N.C. As a fully integrated, year-
    round supplier of fresh fruits and vegetables, we grow our own crops
    and market crops for growers across the United States, Mexico, and
    Central America. With farms of various sizes across numerous
    geographies, we carefully map out the volume of product and diversity
    of our growing locations. This allows us to better control quality and
    consistency throughout our core product categories: a wide variety of
    vegetables, potatoes, onions, melons, apples, pears, and cherries. We
    offer locally grown products and manage locally grown programs as well.
    And we provide turnkey services for customers, including logistics
    solutions, consolidation facilities, quality control, food safety,
    marketing, and a centralized point of contact.
        I joined L&M in 2001, and I am proudest of our product quality and
    service, the strength of our team and growers, and our commitment to
    our customers' needs.
        In addition to my day job, I am Chairman-elect for the Produce
    Marketing Association, which is the largest trade association
    representing companies that market fresh fruits and vegetables. PMA
    represents more than 2,700 member companies in 45 countries. In the
    United States, our members operate throughout the supply chain from
    growing to shipping, processing/manufacturing, distribution,
    wholesaling, retail and foodservice. Collectively, in the United
    States, our members handle more than 90 percent of the fresh produce
    sold to domestic U.S. consumers.
        Today I am here to talk about food waste, especially produce waste
    from the perspective of the grower. This is a complex issue that
    requires a suite of solutions as there is no silver bullet. Fresh
    produce is one of the top contributors to food waste--from the fields
    to stores and restaurants to our homes. When fresh produce goes to
    waste, we lose not only the fruits or vegetables, we also lose all the
    inputs: labor, energy, water, fertilizer, etc., all the resources that
    went into producing it. If the product has been harvested, cooled and
    transported, we lose even more. Thus, the incentive for producers to
    innovate to minimize waste and loss is significant. Our first
    preference, and our goal, is that fresh produce reach its highest and
    best use: feeding people.
        The produce industry, undoubtedly, has a strong role to play, and
    there is no end point--this is a journey, not a destination. In
    general, produce waste happens closer to points of production in less-
    developed countries and closer to points of consumption in developed
    countries. This highlights the need for comprehensive solutions that
    include consumers. Our call is to recognize waste points and do what we
    can to reduce waste.
        Almost 2 years ago (June 2013), the U.S. Department of Agriculture
    (USDA) and the U.S. Environmental Protection Agency (EPA) launched the
    U.S. Food Waste Challenge, calling on producers, processors,
    manufacturers, retailers, communities, and other government agencies to
    join the effort to reduce, recover, and recycle food waste. The
    agencies noted that U.S. food waste is estimated at 30 to 40 percent of
    the food supply. In 2010, they said about 133 billion pounds of food
    from U.S. retail food stores, restaurants, and homes never made it into
    people's stomachs. For produce, the numbers are even bleaker with
    nearly half of the product being wasted worldwide according to a 2011
    United Nations Food and Agriculture Organization (FAO) report.
        This is not to suggest that producers are not continuously making
    efforts to reduce waste because we are. Reducing waste on the farm and
    at the packinghouses makes us better stewards of our land, our
    communities and better businessmen and women. At L&M we treat produce
    that is unmarketable as fresh to the consumer in a manner that fits
    along a continuum of options. These options range from our first choice
    for the unmarketable as fresh produce, which would be used for juicing
    or dehydration all the way down to discing crops under to avoid adding
    any further fixed costs that occur with harvesting and hopefully
    gaining some residual benefit from any plant mass that we return to the
    soil. To be clear, discing a crop is not what we want to see happen; as
    a grower, I hope every fruit, leaf, and stem makes its way to
    somebody's plate, but we also must be mindful of working efficiently to
    reduce our use of resources like fuel, labor, and electricity if we
    know the market opportunity for a crop is not present.
        L&M uses several outlets for product that is not going to be sold
    through the intended channel. We try to find alternative markets/uses
    and we give it to charitable and food bank organizations. L&M donates
    hundreds of thousands of pounds of healthful fresh produce every year
    to charities, including Farmers Feeding Florida (Florida Association of
    Food Banks), Feeding America, Operation Blessing, and a host of others.
        We also move the product into the livestock feed supply chain. And,
    we compost. All of this is very much in keeping with the EPA's Food
    Recovery Hierarchy, something we embrace at L&M. From the producer
    perspective, we typically have a number of options we can pursue well
    before something has to go to the landfill. But we can do more, and in
    my role as Chairman-elect for PMA I am excited about the innovative
    approaches some of my colleagues are taking to further reduce food
    waste.
        In fact, most of you probably have one of the earliest examples of
    innovation to reduce food waste in your refrigerator at home. Baby
    carrots were born from a concern about waste. Misshapen carrots--not
    suitable for the fresh market--were cut and shaped into the now-common
    baby carrots. Baby carrots are 70% of all carrot sales, according to
    The Washington Post, which noted in a January 13, 2016 article (https:/
    /www.washingtonpost.com/news/wonk/wp/2016/01/13/no-one-understands-
    baby-carrots/): ``It also helped lift the industry out of a rut. In
    1987 . . . carrot consumption jumped by almost 30 percent, according to
    data from the USDA. By 1997, the average American was eating roughly 14
    pounds of carrots per year, 117 percent more than a decade earlier. The
    baby carrot doubled carrot consumption.''
        In another example from the production side, Gill Onions, an onion
    producer and processor, installed an Advanced Energy Recovery System
    (AERS) that converts 100% of its daily onion residuals, such as juice,
    into renewable energy and cattle feed. The 300,000 pounds of onion
    waste per year would have otherwise cost the company $400,000 per year
    in disposal costs. Instead, Gill's Onions saves approximately $700,000/
    year on energy costs, disposal costs, and has significantly reduced its
    environmental footprint.
        Recently, FreshPoint (Sysco) introduced its ``Unusual But Usable''
    (http://www.freshpoint.com/ubu/) (UBUTM) program. Though
    FreshPoint is a foodservice distributor, it partners with produce
    growers, taking ``ugly'' or ``imperfect'' produce that might otherwise
    go to waste and finds customers interested in utilizing it. This
    reduces the waste caused by cosmetic imperfections and the customers
    get the products they want at a more attractive price point. Our
    company has also joined in this growing movement to help reduce food
    waste by collaborating with a number of retail customers and providing
    them with misshapen and cosmetically flawed products.
        Many apple and pear processors take the residual solids left after
    juicing and make them into pomace cakes that can be used to feed
    livestock. This results in a considerable reduction in what goes to the
    landfill and an additional supply chain outlet for the grower.
        Of course, growers are continually looking for efficient and
    impactful opportunities to supply fruits and vegetables that are not
    destined for sale to charities. These efforts require significant
    coordination and collaboration. An exciting and relatively new effort
    is called ``Brighter Bites.'' The program engages growers, retailers,
    foodservice distributors, and food banks to use fresh produce that
    otherwise would go to waste and bring it to school children and their
    families who might not otherwise be eating fresh produce regularly.
    This program boosts fruit and vegetable consumption well beyond the
    free deliveries. At school and during distributions, Brighter Bites
    teaches families how to make the most of their produce by supporting
    the implementation of in-class lessons for kids, providing nutrition
    education handbooks for their parents, and sharing weekly tip sheets
    and recipes for everyone to try at home together, in English and
    Spanish. However, whether it be Brighter Bites or other charity supply
    opportunities, all of this takes significant collaboration and
    coordination throughout the supply chain-beginning with the producer.
        Another way to reduce food waste is by making advances that
    maintain the marketability of produce from the field to the retailer.
    Advances in new varieties through traditional and modern breeding
    practices can bring us traits that enhance a crop's ability to
    withstand stresses like excessive heat or cold, low water availability
    or too much water. New varieties can bring traits that increase fruits'
    and vegetables' shelf life or make them more durable for the bumps and
    scrapes that can happen during the transportation process. As USDA
    moves forward with its updates to the biotechnology and other
    regulations, we hope it considers all that these advances can bring to
    the food supply chain and refrain from creating barriers and regulatory
    burdens that could stifle innovation. Through biotech, we may be able
    to produce varieties with traits that would reduce waste (uniform size/
    shape, bruise resistance (like the biotech potato)) by having a higher
    percentage of the crop grown being marketable as fresh. The more we can
    market, the less we will waste.
        Growers also need crop protection tools. Without the ability to
    defend our crops from pests and diseases, the volume of produce waste
    would quickly stack up. There has been much media attention to the
    concerns about pollinators and the potential role of pesticides. In the
    produce industry, we often require insect pollination for fruit
    production, we work closely with the beekeepers and want to do all we
    can to protect bees and other pollinators. At the same time, regulatory
    decisions that would limit or eliminate access to crop protection tools
    must balance risk and benefit and should be made on sound science
    rather than emotion or tangential agendas. As a producer, we are
    worried about some of the recent messaging from the EPA and the
    direction the agency has gone in some instances.
        A final area I would like to address is the importance of strong
    industry and government partnership. We certainly need help on labor
    issues. Many growers in parts of the U.S. have difficulty in finding
    farm workers and produce is left to rot in the field. I recognize this
    is a difficult issue to tackle politically, but we need Congress to
    take action. We also need the Federal Government as a partner in the
    area of research. USDA's intra- and extra-mural research programs have
    done great things for our industry and specialty crops in general.
    Through the Specialty Crop Research Initiative (SCRI) there have been
    projects that deal with the development of mitigation strategies to
    specific pests and diseases. For example, the collaborative efforts
    through the SCRI, the National Institute of Food and Agriculture's
    Integrated Pest Management Program, and the Agricultural Research
    Service are helping producers of numerous fruits and vegetables address
    the significant damage that can be caused by stinkbugs. These insects
    cause cosmetic- and actual-damage to crops that often results in their
    diversion from their intended use or total loss. In another example,
    USDA funds are at work in North Carolina to eradicate Spotted
    Lanternfly right now. This pest threatens millions in damage to grape,
    stone fruit, and apple crops, among others. Mitigating pests and
    diseases reduces damage to crops that can lead unmarketable crops and
    waste.
        Significantly reducing our nation's food waste is a challenging
    endeavor throughout the supply chain. Fortunately, we have options, and
    those options and opportunities continue to grow due to the innovating
    people working in agriculture and this country's entrepreneurial
    spirit. I am here to share with you that L&M and the Produce Marketing
    Association stand ready to partner with you and my fellow witnesses
    here today to move us closer to a zero waste system.
        I would like to thank you for your attention today on these
    critical issues. Thank you again, Mr. Chairman, for holding this
    important hearing and this Committee's attention to these critical
    issues. I look forward to working with you in the future.
                                   Attachment
    Baby carrots are not baby carrots
    Wonkblog (http://www.washingtonpost.com/news/wonk/)
    By Roberto A. Ferdman (http://www.washingtonpost.com/people/roberto-a-
    ferdman) January 13, 2016

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              (Source: Flikr/durera_toujours (https://www.flickr.com/
            photos/derera_toujours/))

        Ten years ago, NPR opened a radio news segment with a few words
    about a man few knew. Mike Yurosek, a carrot farmer from California,
    had passed away earlier that year. The homage was short--it lasted no
    more than 30 seconds--but for many of those listening, it must have
    been eye-opening.
        ``He actually invented these things,'' Stephen Miller, then an
    obituary writer with the New York Sun said, holding a bag of baby
    carrots. ``Not many people know that baby carrots don't grow this
    way.''
        There are small carrots, which uppity restaurants serve as
    appetizers or alongside entrees, that sprout from the ground. But those
    look like miniature versions of the much larger vegetable. The smooth,
    snack-sized tubes that have come to define carrot consumption in the
    United States are something different. They're milled, sculpted from
    the rough, soiled, mangled things we call carrots, and they serve as an
    example, though perhaps not a terribly grave one, of how disconnected
    we have all become from the production of our food.
        ``The majority of consumers have no clue what they're eating or how
    it's produced,'' said David Just, a professor of behavioral economics
    at Cornell who studies consumer food choices. ``There are so many
    people who honestly believe there are baby carrot farmers out there who
    grow these baby carrots that pop out of the ground and are perfectly
    convenient and smooth.''
        It's hard to overstate the ingenuity of the baby carrot, one of the
    simplest and yet most influential innovations in vegetable history. The
    little carrot sculptures (or baby cut carrots, as they're sometimes
    called to clarify) not only revived a once-struggling carrot industry,
    but they also helped both curb waste on the farm and sell the Vitamin
    A-filled vegetables at the supermarkets.
    How Different Fruits and Vegetables Used To Be

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              http://www.washingtonpost.com/video/c/embed/3ab3e70c-1c3d-
            11e6-82c2-a7dcb313287d.*
    ---------------------------------------------------------------------------
        * Editor's note: the video has been retained in Committee files.
    ---------------------------------------------------------------------------
              Humans have been genetically manipulating fruits and
            vegetables for thousands of years through selective
            cultivation. Once we started cultivating wild plants, fruits
            and vegetables got a lot more colorful. (Daron Taylor, Dani
            Johnson, Osman Malik/The Washington Post)

    The Birth of the Baby Carrot
        The baby carrot, like so many inventions before it, was birthed by
    necessity.
        In the early 1980s, the carrot business was stagnant and wasteful.
    Growing seasons were long, and more than half of what farmers grew was
    ugly and unfit for grocery shelves. But in 1986, Yurosek, itching for a
    way to make use of all the misshapen carrots, tried something new.
    Instead of tossing them out, he carved them into something more
    palatable.
        At first, Yurosek used a potato peeler, which didn't quite work
    because the process was too laborious. But then he bought an industrial
    green-bean cutter. The machine cut the carrots into uniform 2" pieces,
    the standard baby carrot size that persists today.
        When Mike Yurosek & Sons, Yurosek's now-defunct California company,
    delivered his next batch to Vons, a local grocery chain, he included a
    bag of the new creation. He suspected he was on to something but hardly
    anticipated such an enthusiastic response.
        ``I said, `I'm sending you some carrots to see what you think,' ''
    Yurosek recounted in a 2004 interview with USA Today (http://
    usatoday30.usatoday.com/life/lifestyle/2004-08-11-baby-carrot_x.htm).
    ``Next day they called and said, `We only want those.' ''
    The Carrot Savior
        Vons wasn't the only one impressed. Grocers, distributors, carrot
    buyers, and, most importantly, some of Yurosek's most formidable
    competition took notice. In the years that followed, baby carrots
    ballooned into big business, nudging the biggest carrot producers in
    the country to join in and feed the frenzy.
        ``When we realized this wasn't a fad, this was real, everybody
    jumped on the bandwagon,'' Tim McCorkle, director of sales for
    Bolthouse Farms, one of the nation's leading carrot producers, recalled
    in a 1998 interview with the Chicago Sun-Times. ``This idea inverted
    the whole carrot-growing business.''
        It also helped lift the industry out of a rut. In 1987, the year
    after Yurosek's discovery, carrot consumption jumped by almost 30
    percent, according to data from the USDA. By 1997, the average American
    was eating roughly 14 pounds of carrots per year, 117 percent more than
    a decade earlier. The baby carrot doubled carrot consumption.
    The Baby Carrot Boom
    Per Capita Consumption of Carrots in the 12 Years After the Baby Carrot
            Was Invented

            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Source: USDA.
              WAPO.ST/WONKBLOG.

        Today, baby carrots dominate the carrot industry. The packaged
    orange snacks are now responsible for almost 70 percent of all carrot
    sales.
        A 2007 report (http://www.ers.usda.gov/media/198875/
    vgs31901_1_.pdf) by the USDA detailed many ways in which baby carrots
    have morphed the entire carrot landscape in the United States.
        The development and rapid consumer acceptance of packaged fresh-cut
    carrot products during the 1990s has helped the carrot industry evolve
    from a supplier of low-value bulk products to marketer of relatively
    upscale value added products . . . fresh-cut carrot products have been
    the fastest growing segment of the carrot industry since the early
    1990s. Within the $1.3 billion fresh-cut vegetable category, carrots
    account for the largest share (about half) of supermarket sales,
    followed distantly by potatoes, celery, and others.
    A Too Perfect Snack
        Of all the reasons for the rise of America's favorite carrot, there
    is likely nothing that has propelled baby carrots quite like their
    convenience. The quality was important to Americans in the 1980s, and
    it's even more precious now.
        As people have found themselves with less time to sit down at
    restaurants or even cook at home, (http://www.washingtonpost.com/blogs/
    wonkblog/wp/2015/03/05/the-slow-death-of-the-home-cooked-meal/)
    convenience has guided all sorts of decisions about food, especially
    when there is an option that requires little more than opening a
    packet.
        ``Baby carrots have transformed the way people think about
    carrots,'' said Just, the behavioral food economist. ``The fact that
    you don't have to peel them, that it involves so little prep, is key.''
        ``Baby carrots are also small enough to fit in your mouth,'' he
    added. ``They're bite-sized and ready to be eaten. They're easy.''
        The fuzziness about the baby carrot's origins may have also helped
    their success.
        Recent marketing efforts to further boost their popularity have
    positioned them as an alternative to junk food, rather than a different
    way to eat carrots. The packaging was changed to mirror that used for
    potato chips. ``Eat 'Em Like Junk Food,'' the 2010 TV, print, and
    digital ads suggested, likening the vegetable vehicle to Doritos and
    other snack foods.
        The campaign was a hit, boosting sales by 13 (https://hbr.org/2015/
    10/the-ceo-of-bolthouse-farms-on-making-carrots-cool) percent,
    succeeding, at least in part, by further disassociating baby carrots
    from their parent.
        ``This is a common theme now,'' said Just. ``We are more and more
    disconnected from what we eat.''
        The truth is that it probably doesn't matter all too much whether
    someone understands that the smooth little 2" carrot cut-outs they're
    devouring didn't grow in the ground. Just maintains that knowing this
    probably wouldn't change anyone's consumption patterns, save perhaps
    for a small group of hardcore naturalists, since the processing
    involved is comparatively minimal.
        But that doesn't forgive the disconnect. Baby carrots, the ones
    that don't grow in the ground, have done more than simply boost the
    sales of carrot producers around the country--they have turned the
    carrot industry into a much more efficient and much less wasteful
    endeavor.
        At a time when most ugly vegetables go to waste in the United
    States,
    (https://www.washingtonpost.com/opinions/eat-the-crooked-carrot-save-
    the-world/2015/03/13/d6899452-c7fb-11e4-a199-6cb5e63819d2_story.html)
    ugly carrots are carved and sold at a premium. What's more, moving the
    peeling process to the factory has allowed the carrot industry to make
    use of the scraps that used to end up in people's trash bins.
        ``It's something pretty amazing about baby carrots that I'm sure
    people don't appreciate,'' Just lamented. ``The same people probably
    think selecting only for regular carrots is more environmentally
    friendly.''

        The Chairman. Thank you, Mr. Oxford.
        Ms. Stasz, did I butcher your name badly?
        Ms. Stasz. It's Stasz, like Daz.
        The Chairman. Stasz. Stasz. Yes, ma'am. You are recognized
    for 5 minutes.

             STATEMENT OF MEGHAN B. STASZ, SENIOR DIRECTOR,
                 SUSTAINABILITY, GROCERY MANUFACTURERS
        ASSOCIATION, WASHINGTON, D.C.; ON BEHALF OF FOOD WASTE
                           REDUCTION ALLIANCE

        Ms. Stasz. Chairman Conaway, Ranking Member Peterson, and
    Members of the Committee, thank you for giving me the
    opportunity to participate this morning on this important
    issue.
        My name is Meghan Stasz, I am the Senior Director of
    Sustainability for the Grocery Manufacturers Association,
    representing the food, beverage and consumer products industry.
    Today I am speaking on behalf of the Food Waste Reduction
    Alliance, an initiative of 30 leading companies, formed in 2011
    by GMA, the Food Marketing Institute, and the National
    Restaurant Association. FWRA commends the Committee for holding
    this hearing and for your interest in finding solutions.
        I will make four key points today. First, we know that food
    waste is a very real problem, and we have a national goal of
    halving it by 2030. Everyone has a role to play to get there.
        Second, the food industry has already stepped forward and
    made considerable process. FWRA brings together manufacturers,
    retailers, and food service companies around three goals:
    reduce food waste generated, increase food donated, and recycle
    unavoidable food waste. GMA's members have been working hard to
    minimize waste as well. In 2014, our companies recycled nearly
    94 percent of the food waste from manufacturing, and in 2015,
    donated over 800 million pounds of food.
        Third, we know that more needs to be done, and our industry
    is taking new steps. GMA and FMI are taking the lead on date
    labeling and reducing consumer confusion. Date labeling is
    important and we are addressing it.
        But context is important, and that is my fourth point. Date
    labeling is not the solution to food waste. There is no silver
    bullet solution here. It needs to be tackled in a range of
    ways.
        And industry can't solve this problem alone. Consumers, as
    we know, are responsible for 44 percent of the food waste in
    landfills. If we are going to make a serious dent, we need to
    help consumers. But reducing food waste is a priority. That is
    why we created FWRA. Co-chaired by ConAgra, Sodexo, and
    Wegman's, we have four areas of focus: assessment, best
    practices, communications, and policy. From this work, we have
    seen really tremendous innovations. ConAgra, who makes Marie
    Callender's potpies, found they could change the way they were
    placing pie dough in a pan, and reduce the amount that needed
    to be trimmed off the edge. This change saved ConAgra over 230
    tons of pie dough in a year. That is food waste that never
    happened.
        Retailers increased food donation by over a billion pounds
    in the last decade. Kroger is piloting an on-site digester to
    turn their food waste into energy. Restaurants are working to
    reduce waste. Yum! Brands alone donated over 184 million pounds
    of food since 1992.
        But let me talk a little bit about date labeling. In
    January, GMA and FMI's boards resolved to work to address
    consumer confusion around date labeling, and a working group of
    25 companies met here last week. A national standard is crucial
    to providing consumers with the clarity they need. Forty states
    have laws regulating date labeling. This patchwork of
    regulations on some products in some parts of the country is
    certainly contributing to confusion.
        But more will need to be done beyond date labeling. Date
    labels can tackle only about eight percent of the total overall
    food waste that is going to landfill. This doesn't mean we
    should do nothing, but clearly, more solutions are needed.
        And businesses are facing challenges to food waste. Supply
    chain challenges, for example. Food safety is paramount, so if
    a local food bank has maxed out its refrigeration or
    refrigerated truck space, often food winds up in a landfill.
    Similarly, diverting food waste away from landfills requires
    infrastructure that makes sense. Food waste is heavy, and it is
    wet, and it requires frequent pickup. If you then have to put
    that material in a diesel truck and drive it hundreds of miles
    to the nearest facility, you have lost your environmental
    benefit. It also has to make business sense. AD can cost
    millions to build and operate, and composting facilities can
    face permitting challenges. So even when a company thinks they
    have found a solution, the composting facility can be shut
    down, the AD can go out of business, and the business is back
    to square one.
        We are also seeing conflicting regulations at the Federal,
    state, and municipal level. In some states, food waste is
    banned from landfill, yet permitting is so onerous that there
    is no infrastructure.
        Finally, consumers: They are the single largest contributor
    of food waste to landfill. NRDC's terrific Save the Food
    Campaign is a great example of what we will need to see to
    really move the needle here.
        So in closing, while challenges do exist, the opportunity
    is enormous, and we really look forward to working with the
    Committee, our industry partners, and others to reduce food
    waste all throughout the supply chain.
        Thank you for your time.
        [The prepared statement of Ms. Stasz follows:]

    Prepared Statement of Meghan B. Stasz, Senior Director, Sustainability,
              Grocery Manufacturers Association, Washington, D.C.
        Chairman Conaway, Ranking Member Peterson, and Members of the
    Committee, thank you for giving me the opportunity to participate in
    this morning's hearing on this important issue. My name is Meghan
    Stasz, I am the Senior Director of Sustainability for the Grocery
    Manufacturers Association (GMA), which represents the food, beverage
    and consumer products industry. I am speaking today on behalf of the
    Food Waste Reduction Alliance (FWRA), an initiative of 30 leading
    companies formed in 2011 by the Grocery Manufacturers Association, the
    Food Marketing Institute (FMI) and the National Restaurant Association.
        The Food Waste Reduction Alliance commends the Committee for
    holding this hearing and for your interest in finding solutions to this
    problem.
        I would like to make four key points in my testimony today:
        First, we know that food waste is a very real problem and the U.S.
    has announced a national goal of cutting food waste in half by 2030.
    Everyone has a role to play in reducing food waste and reaching this
    ambitious national goal.
        Second, the food industry has already stepped forward and made
    considerable progress in reducing food waste. The founding of the Food
    Waste Reduction Alliance in 2011 brought together manufacturers,
    retailers, restaurants and food service companies. We work across
    sectors to identify sources of food waste, increase the amount of food
    sent to food banks and decrease what is sent to landfills, and help
    other food companies find ways they can make an impact.
        GMA member companies have been working hard to minimize food waste
    by reducing the amount of waste being sent to landfills and donating
    food to those in need. In 2014, our companies recycled nearly 94
    percent of the food waste generated from manufacturing and in 2015
    donated over 800 million pounds of food to food banks.
        Third, we know that more needs to be done, and our industry is
    taking new steps. GMA and FMI are taking the lead on date labeling and
    reducing consumer confusion that can lead to food waste. Date labeling
    is important, and we're addressing it.
        But context is important, and that's my fourth point: Date labeling
    is not The solution to the food waste issue--in fact, it is estimated
    to account for some household food waste and therefore a small
    percentage of total food waste to landfill. There is no silver bullet
    solution for food waste. It needs to be tackled in a range of ways, and
    everyone has a role to play.
        Industry cannot solve this problem alone. Consumers are responsible
    for 44% of food waste sent to landfills. If we're going to make a
    serious dent in food waste as a nation, we need to find ways to help
    consumers reduce waste.
    About Food Waste
        Food waste is the single largest category of material in U.S.
    landfills, according to the U.S. EPA. Experts estimate that as much as
    30-40% of the food that's produced in this country is going to waste.
    This not only represents a waste of the natural resources used to grow
    and transport that food, but also a missed opportunity to address the
    challenge of food insecurity in America. Reducing food waste is good
    for the environment, businesses, and food-insecure Americans.
        Food waste is a priority issue to the food industry. That's why we
    created the cross-industry Food Waste Reduction Alliance (FWRA) in
    2011. FWRA is an initiative of GMA, the Food Marketing Institute
    (representing food retailers), and the National Restaurant Association
    (representing the foodservice industry) and brings together 30 leading
    companies from these sectors to address the challenge of food waste in
    the supply chain. Currently co-chaired by ConAgra Foods, Sodexo, and
    Wegman's Supermarkets, FWRA has three overall goals: reduce the amount
    of food waste being generated, recover food to donate to those in need,
    and recycle unavoidable food waste (such as plate waste or vegetable
    peels), keeping it out of landfills.
        FWRA has four areas of focus: assessment, best practices,
    communications, and policy. Every other year the member companies of
    each association are surveyed to get a better understanding on food
    waste and food donation. The resulting data helps FWRA identify what is
    working for businesses, what companies are doing to reduce waste, and
    what barriers are impeding increased donation or diversion from
    landfill. These assessments help inform partnerships and innovations to
    reduce waste in this section of the supply chain.
        To date, FWRA has released two best practices guides. The guides
    are written by companies for companies and identify clear methods to
    get started on a food waste or food donation program or take existing
    programs to the next level. The most recent guide, released in the fall
    of 2015, includes over 30 case studies on companies' successes along
    EPA's food recovery hierarchy.
    EPA Food Recovery Hierarchy

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Source: U.S. EPA https://www.epa.gov/sustainable-management-
            food/food-recovery-hierarchy.

        Finally, FWRA looks at public policies that might help overcome
    existing barriers to the Alliance's goals. It works to understand where
    there are cost effective and environmentally feasible infrastructure
    options in the U.S. and what existing public policies are in place to
    have created such an environment. FWRA is also looking at the varying
    state and municipal regulations to understand the impact on business
    and to the overall goal of reducing the amount of material sent to
    landfill.
        Let me take a moment to describe the work of each of the sectors in
    reducing food waste.
    Manufacturers and Food Waste
        The manufacturing sector is committed to reducing waste. Per the
    results of the most recent FWRA assessment, manufacturers already
    recycle nearly 94% of their food waste. Due to the volume and
    consistency of food waste from manufacturing operations, the vast
    majority of that waste goes to animal feed, a top-tier solution
    according to the food recovery hierarchy. For the waste that is left
    over, the most common barrier to keeping that material out of landfill
    was lack of infrastructure. Additionally, thanks to best practices and
    information sharing of the FWRA, manufacturers are partnering with
    other food businesses to share the cost and operation of solutions like
    anaerobic digestion (AD), which turns food waste into energy.
        Manufacturers are a significant source of food donation. According
    to Feeding America, the largest network of food banks in the U.S.,
    manufacturers donated 808 million pounds of food in 2015. Manufacturers
    and food banks are finding new and innovative ways to ensure safe,
    nutritious food gets to those in need, going beyond traditional
    donation strategies. For example, Campbell's Soup Company partnered
    with the Food Bank of South Jersey to turn excess peaches into peach
    salsa that was made available to food bank customers. ConAgra Foods
    found a way to rescue trimmed ends from their meat snacks, donating 3.1
    million pounds of much needed protein to a local food bank since
    starting the program in June 2012. DelMonte Foods is partnering with
    Feeding America's Grocery Program to recover safe, edible and
    nutritious product. In just the past 3 years, the company converted 3.5
    million pounds of what would have been unused food into a viable
    product for Feeding America. Additionally, food banks and manufacturers
    are working together to find ways to re-label mislabeled product or
    package bulk foods or ingredients into appropriate sizes, maintaining
    food safety and labeling protocols.
    Retailers and Food Waste
        The food retail industry has made enormous strides over the last
    decade in reducing the generation of food waste in stores and across
    the entire distribution chain. Using tools as high-tech as big data
    analytics and as low-tech as simply dumping out a garbage bin on a tarp
    and inventorying it, the industry has been able to develop and
    implement strategies that streamline the supply chain and significantly
    reduce the amount of waste being created.
        Despite these improvements, the retail industry continues to take
    the issue of food waste very seriously. As it stands today, for every
    $1,000 in revenue a store generates almost 10 pounds of food waste is
    created. Faced with this kind of challenge, the food retail industry is
    continuing to adopt new strategies for reducing waste and prides itself
    on approaching the issue pragmatically, with a focus on feeding
    families. As a case in point, one of the primary food recovery programs
    for food retailers focuses on donations to food banks. In 2006, food
    retailers donated 140 million pounds of food to food banks. While
    impressive, through improved collaborations with our friends at Feeding
    America, this past year, grocers donated more than 1.4 billion pounds
    of food. That's a dramatic improvement, but there still remains room
    for growth.
        The food retail industry has also taken a number of steps to
    address food waste at the consumer level. For example, FMI has
    partnered with USDA and Cornell University to create the FoodKeeper
    (http://www.fmi.org/industry-topics/consumer-affairs/food-keeper-food-
    storage-database), an online database and app which began as a brief
    pamphlet in 1994. Today, FoodKeeper offers consumers guidance on how to
    safely store and handle thousands of food products to help maximize
    quality and freshness and minimize unnecessary waste.
    Date Labeling
        The GMA and FMI Boards of Directors resolved in January 2016 to
    work together and with other industry groups to reduce consumer
    confusion around date labeling, a commonly cited contributor to food
    waste.
        I think everyone can agree that there is consumer confusion around
    date labels such as the ``sell by,'' ``use by'' and ``best by'' phrases
    associated with a date on food or consumer products packaging. These
    dates and phrases are a communication from the manufacturer to the
    retailer regarding stocking or rotating products or to the consumer to
    convey information about the quality of the product. However, research
    shows that consumers misinterpret these dates and, as a result, may be
    disposing of food unnecessarily. It can also result in donated food
    being thrown away due to unintended consequences of state laws or
    confusion by food bank employees.
        GMA and FMI believe a national date labeling standard is crucial in
    providing consumers with the clarity they need. According to the
    Harvard Food Law and Policy Clinic, there are currently forty U.S.
    states with existing laws regulating food date labeling. This patchwork
    of regulations on some products in some parts of the country certainly
    contributes to consumer confusion. Codex, the international labeling
    standards organization, is also working to address this issue and GMA
    supports a harmonized approach. We are committed to giving consumers
    the information they need to make informed decisions regarding the
    safety and quality of the products they purchase and consume.
        More will need to be done to solve the food waste challenge beyond
    date labeling, however. It's estimated that consumers account for 44%
    of U.S. food waste to landfill. Studies by groups like the Harvard Law
    and Policy Clinic show that date label confusion is cause for a
    percentage of that household food waste. This means that date labels
    can tackle only some consumer waste and so potentially have a small
    impact on the total overall amount of food waste to landfill in the
    U.S. Clearly more solutions are needed and there are opportunities for
    everyone to help us reach the national 50% reduction goal by 2030.
    Restaurant Industry and Food Waste
        As a founding member of the FWRA and the leading business
    association for the restaurant and foodservice industry, the National
    Restaurant Association works to educate its members about the
    opportunity to protect the environment and help the communities they
    serve by reducing food waste in their operations.
        For example, the NRA's Conserve program is an educational resource
    that provides operators the tools and information needed to divert food
    waste from landfills. The Conserve website offers practical advice such
    as how to start a composting program or how to inventory and track
    waste, which can lead to cost savings and improve a restaurant's
    environmental footprint.
        Restaurants are also the cornerstones of their communities and have
    donated nutritious, wholesome food to charities and food banks for
    decades. For example, Yum! Brands, the parent company of KFC, Pizza
    Hut, and Taco Bell, has been donating food since 1992. Since that time,
    they have donated over 184 million pounds of food, estimated to be
    enough to feed 42,000 families of four, three meals a day, for an
    entire year. Likewise, Darden Restaurants, which operates brands such
    as Olive Garden and Longhorn Steakhouse, has donated more than 91
    million pounds of food, totaling more than 75 million meals. Starbucks
    also recently set a goal to rescue 100 percent of food available to
    donate, including breakfast sandwiches, Paninis, Bistro Boxes and
    salads from all of their U.S. company-operated stores.
        Restaurants are unique in a number of ways that create specific
    challenges for waste reduction. For example, small businesses dominate
    the industry with more than seven out of ten eating and drinking
    establishments being single-unit operations. In addition, the
    restaurant business model produces relatively low pre-tax profit
    margins of only four to six percent which means that even small
    increases in costs for efforts like waste reduction can often be
    burdensome to these small businesses and independent operators.
    Challenges Remain To Reduce Waste
        Collecting data is challenging, but experts agree that food waste
    happens all along the supply chain and for different reasons. A study
    conducted by the nonprofit BSR for FWRA finds the following breakdown
    of food waste to landfill in the U.S.: Households account for 44% of
    the waste, industrial sources like manufacturers is 2%, grocery stores
    is 11%, full service restaurants is 20%, quick service restaurants is
    13%, and institutions such as hospitals and schools accounts for the
    final 10% of food waste to landfill domestically.
    Sources of Food Waste to Landfill in the U.S.
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Source: FWRA Tier 1 Assessment, 2012
            www.foodwastealliance.org.

        In light of these figures, the FWRA works to raise awareness of
    this issue in the food industry and find solutions that are in-line
    with the EPA's food recovery hierarchy.
    Lack of Infrastructure
        Food waste happens all along the supply chain. So there is no
    silver-bullet solution to this problem. Everyone has a role to play if
    we are to meet the nation's goal of a 50% reduction of food waste to
    landfill by 2030. The food industry is addressing food waste in our
    section of the supply chain via FWRA, contributing new data, sharing
    best practices, partnering with stakeholders, and identifying effective
    public policy.
        Supply chain challenges are preventing companies from donating food
    and diverting food waste. FWRA's 2014 Assessment of food manufacturers,
    retailers, and restaurants found that transportation constraints is a
    top barrier to donation for 63% of manufacturers and 78% of both small
    and large restaurant operations.
        Another barrier was storage and refrigeration at food banks, which
    was identified as a major barrier by 50% of manufacturers, 50% of
    retailers, 67% of small restaurants and 56% of large restaurants. Food
    safety is paramount and so if a local food bank does not have enough
    refrigeration space or properly equipped trucks for transporting
    donated food, that food often ends up discarded.
        Similarly, successfully diverting unavoidable waste away from
    landfill requires infrastructure options that are geographically and
    operationally feasible. FWRA's 2014 Assessment found that 70% of
    manufacturers, 92% of retailers, 83% of small restaurants and 100% of
    large restaurants surveyed listed ``insufficient recycling options'' as
    their number one barrier to diverting food waste from landfill.
    Currently the lack of infrastructure options is a significant hurdle to
    keeping food waste out of landfill for businesses around the country.
        The nearest composting facility or anaerobic digester may be
    several hundreds of miles away and/or charging significantly more per
    ton than landfills. Anaerobic digesters can cost millions of dollars to
    build and operate and composting facilities can face permitting
    challenges from municipal or state regulators. Also, securing a
    reliable waste hauler to transport the material, which is very heavy
    and wet, and pick up that waste can frequently be either cost
    prohibitive or simply unavailable. Even in places where commercial
    generators of waste are required by law to divert their food waste away
    from landfill, sufficient infrastructure options may not exist.
        Finally, companies face challenges to food waste reduction that are
    specific to the type of food business operation. For example,
    restaurants are unique in a number of ways that create specific
    challenges for waste reduction. Management and building constraints
    often exist for restaurants. A restaurant might not own the building in
    which their restaurant is located and therefore, might not have control
    over their waste management options. Finally, waste management
    decisions are often local in nature and the franchisee model of many
    restaurant companies means that the parent company does not have
    control over their franchisees' local waste decisions.
    Regulatory Challenges
        Strengthening understanding of and support for existing regulations
    that facilitate donation, such as the Bill Emerson Good Samaritan Act,
    is critical to increasing donation from food businesses. The 2014 FWRA
    Assessment found that 50% of manufacturers and 67% of retailers and
    small and large restaurants cited liability concerns as a top reason
    for not donating more food. The Good Samaritan Act provides those
    liability protections, but more can be done to educate businesses and
    state and local stakeholders as to those protections.
        Tax incentives for donation help increase donations further and
    more can be done here as well. We were pleased that Congress recently
    signed into law the PATH Act, which expands the food donation tax
    deduction that allows companies to take an enhanced deduction when
    donating food. This expanded provision will also encourage more
    businesses, especially small businesses, to donate to those in need by
    making the tax deduction permanently available for non-C corporations.
        Conflicting regulations at the Federal, state, and municipal level
    hinders successful food waste reduction and donation. In the FWRA 2014
    Assessment, 50% of manufacturers and 56% of small and large restaurant
    companies identified regulation as a top barrier to donating more food.
    These regulations can often have unintended consequences. For example,
    some U.S. states restrict the sale or donation of food after its
    quality date, which can result in safe, nutritious food being sent to
    landfill. In other states, food waste is banned from landfill, yet
    existing permitting at the county or municipal level for compost or
    anaerobic digestion facilities is so onerous that infrastructure does
    not exist.
    Role of Consumers
        Per the FWRA study by the nonprofit BSR, consumers account for 44%
    of the food waste sent to landfill in the U.S., making this group the
    single largest contributor. The food industry is dedicated to reducing
    waste in our operations and finding new opportunities for donation, but
    the challenge of in-home food waste remains. This is not a challenge
    industry can solve on its own. Efforts such as streamlining date
    labeling will help, but much more will need to be done to really
    address this category of waste. One of the challenges is lack of
    consumer data. What makes up consumer's food waste and what drives that
    group to dispose of food or how those behaviors might differ by
    household size, age, or geographic location (urban, suburban, rural) is
    unknown. More information is needed to identify the causes of household
    food waste and therefore the most effective solutions.
    Questions to Consider
        The food industry is a leader in reducing food waste sent to
    landfill and we take our role in working toward meeting the U.S.'s 50%
    reduction goal seriously. Based on this expertise, some common
    questions arise for the Committee to consider:
    How do we better coordinate relevant agencies of jurisdiction?
        The food supply chain is a complex system. The U.S. is a global
    leader in food safety and supply chain management, providing consumers
    with affordable, nutritious products at an incredible scale. This
    complex and successful system, however, means that many agencies and
    stakeholders are involved or have jurisdiction over the myriad parts of
    the supply chain where food waste or food donation occur. Better
    coordinating these agencies at the Federal, state, and local level will
    help develop even stronger donation programs and infrastructure
    options.
    What policies are working?
        FWRA is working to understand where in the U.S. there is a range of
    infrastructure options for commercial generators of food waste and the
    reasons for that infrastructure. Identifying what public policies are
    working at all levels of government will help all those involved in
    this effort support and replicate those policies in other parts of the
    country. As mentioned previously, there is no silver bullet and
    effective solutions vary even from business to business, but
    identifying what policies levers can be pulled to encourage innovation
    and find value in what was considered waste is a win for the
    environment, society, and business.
    How do we improve infrastructure options?
        For businesses, food waste often winds up in a landfill because
    there is no alternative or existing alternatives are environmentally or
    financially prohibitive. Encouraging entrepreneurs to find solutions to
    food waste or expand successful businesses addressing this challenge
    will benefit all actors in the food supply chain. At the FMI-GMA Global
    Sustainability Summit in 2015, the associations partnered with USDA to
    host a Food Waste Start Up Challenge. That event showcased six
    entrepreneurs, selected by a panel of experts, with businesses
    addressing waste via methods ranging from apps that suggest recipes for
    leftovers to new ways to sell ``ugly'' produce to composting
    innovations. As interest in and awareness of this issue grows, so will
    the power of innovation. We can work together to support these
    innovative solutions as well as traditional methods of diversion like
    composting and AD.
    How do we educate consumers?
        As referenced earlier, consumers are the single largest contributor
    of food waste to landfill in the U.S. Educating consumers about the
    issue of food waste, their role, and what they can do at home to reduce
    waste and save money will take cooperative and sustained efforts from a
    range of partners. The Natural Resource Defense Council's Save the Food
    campaign is an excellent example of an existing effort that can make a
    difference in consumer awareness and behavior. More efforts like these
    are needed to truly move the needle on household food waste.
        While challenges do exist, the opportunity presented by food waste
    reduction to lessen our environmental footprint and help address hunger
    is enormous. We look forward to working with the Committee, our
    industry partners, and others to take advantage of that opportunity and
    work to reduce food waste throughout the food industry.

        The Chairman. Thank you, Ms. Stasz.
        Ms. Aviv, 5 minutes.

       STATEMENT OF DIANA AVIV, CHIEF EXECUTIVE OFFICER, FEEDING
                          AMERICA, CHICAGO, IL

        Ms. Aviv. Mr. Chairman, Ranking Member Peterson, and
    Members of the Committee, I am honored to testify before you
    today.
        Each year we waste 70 billion pounds of food suitable for
    donation. At the same time, people in every community across
    our nation struggle with food insecurity. To help end hunger,
    Feeding America works with 198 food banks, 60,000 local food
    agencies, and 148 corporate partners. Together, we provide 4.5
    billion pounds of food to more than 46 million Americans each
    year, including 12 million children and seven million seniors.
        Of the food we distribute, more than \1/2\ of it, which is
    about 2.6 billion pounds, would otherwise go to landfill. And
    yet this still does not meet the need. Significant gaps remain
    between the food low-income people need, and the resources that
    they have to buy it. Diverting excess food to donation provides
    a triple benefit. It reduces hunger, it protects our
    environment, and it helps businesses with sustainability.
        But perishable food must move safely and quickly from the
    donor to the people who need it. Doing so requires innovative
    practices, technological knowhow, as well as costly physical
    infrastructure, like refrigerated trucks and cold storage
    capacity.
        I want to share with you two examples of innovative
    platforms that we have developed to divert more excess food to
    donation. Produce Matchmaker is an online portal and ordering
    system that helps produce donors connect with food banks. It is
    available 24 hours a day, and it allows food banks to review
    offers and accept donations in real time, moving produce to
    hungry families more quickly. Food banks can order produce
    donations by the pallet, rather than the truckload. This saves
    transportation costs and allows cost-effective rescue of
    smaller amounts of produce. Produce Matchmaker is already being
    used by more than 150 food banks and state associations in
    Fiscal Year 2016, and connected 125 million pounds of produce
    with food banks across 40 states. It will help us recover and
    distribute significant amounts of produce that is currently
    wasted.
        MealConnect is our new online platform to facilitate the
    easy, safe, and fast donation of fresh food from grocery and
    convenience stores and food service locations. Donors engage
    online when they have extra product to donate, and are matched
    to their local food bank. It is the only donation-matching
    software that fully vets both donors and recipients to ensure
    that proper food safety protocols are followed throughout the
    process. Using MealConnect on a smartphone or PC simplifies the
    logistics of matching excess food with a nearby pantry that can
    accept it. This is local food rescue in the sharing economy.
    MealConnect is enabling Starbucks to partner with Feeding
    America to launch FoodShare, which will provide an additional
    50 million meals over the next 5 years as the program rolls out
    to 7,600 Starbucks stores across the U.S.
        But Produce Matchmaker and MealConnect won't solve the
    problem alone. Additional investment in technology and physical
    infrastructure are needed.
        The improvement to the enhanced tax deduction for donated
    food enacted last December will also have a significant impact
    on food recovery. By expanding the deduction to include farmers
    and growers, and making it permanent for all businesses, we
    expect that nearly one billion additional meals that would have
    been wasted, now will be donated. Thanks to you and your
    colleagues for passing this critical legislation. Without it,
    we would be worse off.
        To continue increasing food recovery, additional
    investments to identify and scale promising program models are
    definitely required. Policy changes such as standardizing date
    labels on food, and providing USDA grants to small businesses
    and nonprofits to facilitate food recovery would also have a
    significant impact. As you examine this critical issue and
    begin preparing for the next farm bill, we stand ready to work
    with you. I encourage you also to visit your local food bank to
    learn about food recovery within your district.
        And thank you very much for the opportunity to testify.
        [The prepared statement of Ms. Aviv follows:]

      Prepared Statement of Diana Aviv, Chief Executive Officer, Feeding
                              America, Chicago, IL
        Mr. Chairman, Ranking Member Peterson, and Members of the
    Committee, it is an honor to be invited to testify before you today and
    submit testimony for the record on the issue of food waste. Food waste
    is a serious problem in America, with 70 billion pounds of food wasted
    each year across the food industry, a number that climbs to 133 billion
    pounds once consumer waste is included in that figure.\1\ I commend the
    Committee for focusing on this important issue and am honored to
    discuss how the Feeding America network safely rescues over 2.6 billion
    pounds of food a year to feed those needing food assistance.
    ---------------------------------------------------------------------------
        \1\ Buzby, Jean C., Wells, Hodan F. and Hyman, Jeffrey. The
    Estimated Amount, Value, and Calories of Postharvest Food Losses at the
    Retail and Consumer Levels in the United States. USDA Economic Research
    Service, February 2014.
    ---------------------------------------------------------------------------
        The amount of food wasted in America each year is staggering. At
    the same time 48 million Americans--one in seven people in across our
    country--are food-insecure.\2\ Recovering excess food that would
    otherwise be wasted for donation is a national imperative. It is also
    provides a triple benefit reducing hunger, protecting our environment
    and helping businesses meet sustainability goals. Feeding America works
    with our network of 198 food bank members, their 60,000 local food
    agencies, and 148 national corporate partners to provide 4.5 billion
    pounds of food, or 3.7 billion meals each year, and food recovery is an
    essential part of our work. More than half of the food we distribute,
    over 2.6 billion pounds in 2015, would otherwise have gone to waste
    streams or landfill.
    ---------------------------------------------------------------------------
        \2\ Jensen, A., Rabbitt, M., Gregory, C., Singh, A. Household Food
    Insecurity in the United States in 2014. USDA Economic Research
    Service, September 2015.
    ---------------------------------------------------------------------------
        The food our network distributes comes from a variety of sources,
    including Federal nutrition programs like The Emergency Food Assistance
    Program (TEFAP) and the Commodity Supplemental Food Program (CSFP), as
    well as from food rescued from manufacturing, retail, food service, and
    farmers and growers.
        In Feeding America's Fiscal Year 2015, the 4.5 billion pounds of
    food distributed by our network came from:

       17% Federal Commodities (TEFAP and CSFP).

       33% Retail Food Donations.

       21% Manufacturing Donations.

       16% Fresh Produce Donations and Purchases.

       13% Other Purchased Food.

        Increasing the amount of excess food diverted from waste to
    donation must be a national priority. The stakes could not be higher.
    According to research conducted by Feeding America, there is a
    significant meal gap, or difference between the food low-income people
    need and the resources they have to buy that food. Map the Meal Gap
    2016 \3\ shows that there are over eight billion meals missing from the
    tables of low income Americans per year. Juxtapose that need against
    the 70 billion pounds of food wasted each year from farm to consumer
    facing businesses like supermarkets and restaurants and it is clear
    that diverting food from waste to donation is both a national
    imperative and a critical resource in the fight against hunger that we
    need to fully utilize.
    ---------------------------------------------------------------------------
        \3\ Map the Meal Gap looks at food insecurity by county across
    America and the amount of meals missing from food-insecure Americans
    households.
    ---------------------------------------------------------------------------
        While one might assume that food insecurity is decreasing
    significantly as the economy continues to recover and national
    unemployment has decreased to about five percent, this is not the case
    and millions of families continue to struggle to get back on their feet
    in the wake of the recession. The Bureau of Labor Statistic's broader
    alternative measure of unemployment, the U-6, also includes people
    working part-time for economic reasons and those marginally attached to
    the workforce. It reflects a more comprehensive picture of the
    employment environment facing many low-income workers and remains at
    about 9.7 percent.\4\ Many American workers are working part-time due
    to limited hours offered by employers, or due to health, dependent
    care, or other challenges that make full time employment difficult.
    Numerous others are working full-time but simply not earning a high
    enough wage to meet the needs of their family. As a result, for many
    people work does not provide protection from poverty and food
    insecurity. In fact, research shows \5\ that 40 percent of Americans
    will spend at least 1 year in poverty between the ages of 25 and 60.
    When those experiencing at least 1 year in near poverty, with incomes
    below 150 percent of the poverty line which is $36, 450 for a family of
    four, are factored in, that number climbs to a shocking 54 percent.
    While conventional wisdom is that poverty impacts a small number of
    people who are impoverished for many years, the reality is that a
    majority of Americans experience poverty or near poverty over the
    course of their working lives, often due to circumstances such as job
    loss, inadequate hours, divorce or health issues.\6\
    ---------------------------------------------------------------------------
        \4\ Bureau of Labor Statistics Alternative Measures of Labor
    Underutilization; http://www.bls.gov/news.release/empsit.t15.htm.
        \5\ Rank, Mark Robert, Hirschl, Thomas A. and Foster, Kirk A.
    Chasing the American Dream: Understanding What Shapes Our Fortunes.
    Oxford University Press, 2016.
        \6\ Ibid.
    ---------------------------------------------------------------------------
        The people Feeding America serves consistently identify a lack of
    funds to meet basic household needs, including adequate amounts of
    nutritious food, which underscores how important it is to recovery more
    of the 40 percent of food wasted each year. Feeding America's
    quadrennial study of the people utilizing charitable food assistance,
    Hunger in America 2014, reveals that about \2/3\ of the people our food
    banks and their local agencies serve are making impossible trade-offs
    between paying for food and other necessities like rent,
    transportation, health care and utilities. According to the research,
    69 percent of client households had to choose between food and
    utilities, 66 percent had to choose between food and medical care, and
    57 percent had to choose between food and housing.\7\ These dilemmas
    can put households in the position of choosing between competing
    necessities making it challenging to meet urgent needs, much less get
    back on their feet and achieve financial stability.
    ---------------------------------------------------------------------------
        \7\ Weinfield, N.S., Mills, G., Borger, C., Geaing, M., Macaluso,
    T., Montaquila, J., Zedlewski, S. (2014) Hunger In America 2014.
    ---------------------------------------------------------------------------
        Feeding America is committed to increasing the amount of food we
    safely rescue so that we can provide additional healthy meals to help
    struggling Americans fill the meal gap. When Feeding America began 37
    years ago, its focus was on rescuing excess, shelf stable food from
    food manufacturers and retailers. Over the years, our rescue programs
    have expanded to include perishable food donated from retailers,
    restaurants and food service as well as from farmers and growers. In
    fact, more than \1/2\--52 percent--of the food we distribute is
    perishable. While perishable food, which includes items like milk,
    eggs, protein, fruits and vegetables is highly sought after by our food
    banks and the people they serve, it also entails more challenges than
    shelf-stable food and is more expensive to handle. Considerable
    investment in physical infrastructure such as refrigerated trucks,
    cold-storage capacity and sophisticated logistics is required to ensure
    that it can be distributed quickly and safely.
        Much of the food that is wasted every year is highly perishable
    food, including fresh produce that does not get harvested or make it to
    market, as well as food at retail and food service establishments that
    cannot be connected with people in need before it expires. Distributing
    perishable food is essentially a race against the clock to get the food
    from the donor to the people who need it. Unlike with shelf-stable
    goods, perishable foods have a more limited shelf life. Ensuring that
    donors can connect quickly with food banks and agencies who can safely
    distribute that food to the people who need it before it expires
    requires both innovation in new technology and processes to increase
    efficiencies, as well as investments in physical infrastructure and
    transportation. Thanks to the generosity of our corporate partners,
    Feeding America has invested extensively in strengthening our food
    banks' ability to recover and distribute perishable food, but we know
    that additional investment is needed, especially at the agency level.
        To overcome some of these barriers and capture excess perishable
    food, Feeding America has partnered with the food industry to develop
    and implement innovative technology platforms and pilot programs. The
    pilots reinforced the need for funding and infrastructure to store and
    transport fresh produce and how a lack of funding can limit rescue
    opportunities. Several years ago, we partnered with Seneca Foods to
    capture sweet corn from fields in Minnesota that is not harvested.
    Several large food processing companies also assisted by providing
    equipment to harvest and cool the corn. The opportunity was
    significant--over half a million pounds of sweet corn. With support
    from donors to cover the cost of harvesting the corn, the cooling shed
    systems, the packing equipment and materials, and the transportation,
    we were able to harvest 600,000 pounds of corn and 800,000 in 2013 from
    Seneca and Del Monte. We distributed all of it across Minnesota and to
    15 additional states. There was additional sweet corn but we lacked the
    funds to harvest, cool and distribute the corn within its 7 day shelf
    life. The operational challenges in the field and the cost of
    transportation to the food bank are only one set of hurdles; food banks
    and other charitable food providers also need additional cooling,
    storage and transportation capacity to take advantage of donation
    opportunities and be able to distribute perishable food to those in
    need before it expires.
        In part from the lessons learned during this pilot, Feeding America
    designed and invested in innovative technology platforms to facilitate
    perishable donations.
        Produce Matchmaker is an online portal and ordering system designed
    to help produce donors quickly connect with food banks when produce is
    available 24 hours a day. It allows food banks to review offers and
    accept donations in real time so that produce can be moved more quickly
    to hungry families and food banks can calculate their distribution
    costs and make cost-effective decisions.
        The system also allows food banks to order produce donations by the
    pallet, rather than the truckload, to save transportation costs and
    rescue smaller amounts of produce. Currently in Phase One of two
    phases, Produce Matchmaker is already being used by more than 150 food
    banks and state associations.
        Phase Two, which will be implemented this summer (2016), will add
    additional features such as enhanced data tracking, better long-term
    produce planning and collaboration between food banks to share costs.
    Ultimately, we expect the system will help us source, handle and
    distribute more of the billions of produce that is wasted each year.\8\
    ---------------------------------------------------------------------------
        \8\ According to a study conducted for Feeding America by the
    Boston Consulting Group, 48 billion of the 70 billion pounds of food
    wasted each year is in the ag and agri-processing industry. Although
    Produce Matchmaker will help with accessing some of this, it is not the
    only solution.
    ---------------------------------------------------------------------------
        We also have launched MealConnect, an online platform to facilitate
    the easy, safe and fast donation of fresh food from grocery stores,
    convenience stores and foodservice locations by matching donors to
    their local Feeding America food bank. At no cost, donors and
    prospective donors can engage online with Feeding America member food
    banks when they have extra product to donate to their neighbors facing
    hunger. It is the only donation matching software that fully vets both
    the donor and the recipient to ensure proper food safety protocols are
    followed throughout the donation process.
        When a donor posts surplus food on MealConnect, the member food
    bank is instantly alerted and their vetted food pantry is dispatched to
    collect the product at a prearranged time. Using MealConnect on a
    smartphone, tablet or PC simplifies the logistics of matching excess
    food with a nearby pantry who can accept it. This is local food rescue
    in the sharing economy.
        MealConnect is the technology platform enabling Starbucks to
    partner with Feeding America to launch Food Share, which will ensure
    the donation of an additional 50 million meals over the next 5 years as
    the program is rolled out across our 198 food banks and to 7,600
    Starbucks stores across the U.S. While MealConnect will help us capture
    an additional 50 million meals over the next 5 years from the Starbucks
    FoodShare program alone, it will not solve the entire problem. We need
    Congress to provide funding to invest in innovative platforms like this
    to enable additional meal recovery. Pilot programs take a significant
    amount of investment to identify what solutions work and can be scaled
    across multiple food banks, and a combined investment from the public
    and private sector would strengthen our ability to pursue additional
    innovative programs.
        The expansions to the enhanced deduction for donated food, included
    in the Protecting Americans from Tax Hikes (PATH) Act enacted into law
    in December 2015, ensure that the enhanced deduction is available to
    businesses of all sizes who donate or wish to donate food to food banks
    and other qualified charities. According to estimates from the Joint
    Committee on Taxation, the changes are expected to result in nearly one
    billion additional meals over the next 10 years.\9\
    ---------------------------------------------------------------------------
        \9\ Joint Committee on Taxation, Estimated Revenue Budget Effects
    Of Division Q Of Amendment #2 To The Senate Amendment To H.R. 2029
    (Rules Committee Print 114-40), The ``Protecting Americans From Tax
    Hikes Act of 2015'', December 15, 2016.
    ---------------------------------------------------------------------------
        Congress has long recognized the importance of tax incentives as a
    tool to facilitate donations of excess food. The Tax Reform Act of 1976
    established an enhanced tax deduction for large companies donating food
    to a qualified 501(c)(3) nonprofit. Although this tax incentive helped
    spur the growth of the Feeding America network's food rescue efforts,
    the tax incentives did not apply to a large number of potential food
    donors. Small businesses and farmers in particular were not able to
    take the enhanced tax deduction, meaning that in many cases it would
    cost a donor more to implement a food donation program than it would to
    send the food to the landfill or leave it in the field.
        In 2015 thanks to the efforts of lawmakers on both sides of the
    aisle, the Protecting Americans from Tax Hikes (PATH) Act was enacted.
    It included an expansion of the food donation tax deduction to include
    all businesses, large and small, as well as farmers using cash basis
    accounting. The changes also make it easier for food industry donors to
    take the enhanced deduction for donated food that may not be intended
    for market. An example of that would be our partnership with a cereal
    manufacturer that is now donating cereal that does not have enough
    dried fruit added to it to meet their standards for retail sale. Before
    the passage of the PATH Act, it was more cost-effective for the donor
    to sell the cereal for animal feed than to donate the cereal to a food
    bank. With the PATH Act changes to allow the valuation of products that
    don't meet manufacturers' specifications, the donor can now take the
    enhanced tax deduction for donating the cereal to its local food bank.
    This incentive recognizes that donating excess food to struggling
    families should be the top priority for food waste reduction. The EPA
    hierarchy establishes a pyramid of landfill diversion strategies for
    food waste; those strategies, listed in importance, are source
    reduction, feed hungry people, feed animals, industrial uses,
    composting, and landfill/incineration.
        Now that the legislation has become law, our focus is on educating
    our donors and potential donors across the food industry, particularly
    farmers and growers, about the expansion of the enhanced deduction for
    donated food and how they can leverage it. To do so, Feeding America
    has partnered with Deloitte Tax to produce specific information by food
    industry sector to detail the changes, how they impact that sector and
    how donors can utilize the enhanced tax deduction for donated food. We
    commend you and your colleagues in Congress for passing last year's
    PATH Act and taking this critical step in improving Federal policy to
    support food rescue.
        Moving forward, there is a significant opportunity to partner with
    Congress, the Administration and elected officials at the Federal,
    state, and local level on policy and regulatory changes, as well as
    public education campaigns to reduce food waste and increase food
    donation. As you examine the scope of food rescue in America and begin
    preparing for the next farm bill, we urge you to make this issue a
    priority and look forward to working with you.
        Standardizing date labels on food at the Federal level is one
    policy change that would have a significant impact on food waste at the
    consumer level and throughout the supply chain. Many of the date labels
    used in the food industry right now are a baffling mixture of ``sell
    by'' ``best by'' or ``use by'' that is not science-based and confuses
    consumers. In addition, providing a clear Federal standard about when
    food can be donated if it is past a quality date would enable increased
    food donations in the twenty states that currently have arbitrary
    restrictions on food donations past the sell by date.
        There are also other changes that would have a significant impact
    on food rescue, including a thorough review of USDA administered grant
    and incentive programs to identify opportunities to ensure that food
    rescue is specifically included. Many grant programs, such as Specialty
    Crop Block Grants, the Local Food Promotion Program Grants and the
    Farmers Market Promotion Program Grants support activities that mirror
    aspects of the work food banks are doing to rescue food, but do not
    specifically mention food rescue in the authorizing language for the
    grants. Expanding the grants to encompass food rescue would make it
    easier for food banks to apply for funding to support food rescue,
    build innovative partnerships and fill the infrastructure and
    transportation funding gaps that exist today.
        As you continue to examine this critical issue, we stand ready to
    partner with you. I encourage you to visit your local food bank to
    learn about the challenges and opportunities they face, as well as
    their work to capture more food that would otherwise be wasted. Thank
    you for the opportunity to testify and we look forward to discussing
    this further with you.

        The Chairman. Well, I thank our witnesses for their
    testimony. The chair would remind Members they will be----
        Mr. Peterson. We have one more.
        The Chairman. I am sorry, Ms. Broad Leib. I jumped over on
    the end. I am sorry, ma'am.
        Ms. Broad Leib. That is okay.
        The Chairman. Ms. Broad Leib for 5 minutes. Sorry about
    that.
        Ms. Broad Leib. Did my time pass so fast?
        The Chairman. You looked like--yes.
        Ms. Broad Leib. Thank you.
        The Chairman. My apologies. I am so sorry. Ms. Broad Leib,
    5 minutes.
        Ms. Broad Leib. That is okay.

           STATEMENT OF EMILY M. BROAD LEIB, J.D., ASSISTANT
      CLINICAL PROFESSOR OF LAW AND DIRECTOR, FOOD LAW AND POLICY
             CLINIC, HARVARD LAW SCHOOL, JAMAICA PLAIN, MA

        Ms. Broad Leib. Thank you, Chairman Conaway, Ranking Member
    Peterson, and the Members of the Committee for the opportunity
    to speak with you.
        My name is Emily Broad Leib, and I direct the Harvard Law
    School Food Law and Policy Clinic.
        We have worked on reducing food waste for several years,
    and through our work with various clients and partners, we have
    come to see intimately the challenges to food waste reduction
    and food recovery. And I want to highlight a few issues.
        First, as you have heard from many of my colleagues,
    confusion over date labels is a major cause of food waste. The
    ReFED report found that standardizing date labels is the most
    cost-effective of 27 of the different solutions they examined
    to reduce food waste, and could divert 398 tons of food waste.
    We have identified two key challenges with date labels. First,
    in The Dating Game, which we published in 2013 with the NRDC,
    we showed that there is a dizzying array of state laws created
    to fill the void in Federal regulation on this issue. Forty-one
    states and D.C. regulate date labels, but no two states have
    the same law, which is evidence that these laws are not based
    in science or sound public policy. New York, for example, does
    not regulate dates on any food products, but its neighbor,
    Massachusetts, requires dates on all perishable and semi-
    perishable products, and then heavily restricts sale or
    donation after the date.
        Second, we found that consumers are confused. On most
    foods, date labels are not intended to communicate safety.
    Instead, they signal a manufacturer's estimate of how long the
    food will be at its best taste. But consumers toss past-date
    food because of safety fears. In a national survey my clinic
    conducted this April with the National Consumers League and the
    Johns Hopkins Center for a Livable Future, we found that over
    \1/3\ of consumers always throw food away after the date, and
    84 percent do so at least occasionally. Interestingly, \1/3\ of
    consumers also already believe the Federal Government regulates
    date labels.
        Through our work on date labels, we have also learned that
    safety is a risk for certain food products, such as deli meats
    or unpasteurized dairy, if they are consumed after the date.
    That also isn't communicated clearly to consumers. Moving
    forward, we could align with what most other countries do, and
    as Representative Pingree discussed, require a standard quality
    label on foods where freshness is a concern, and a standard
    safety label on foods that actually carry a safety risk after
    the date. We have been excited to see support for standard date
    labels from companies like Wal-Mart, General Mills, Nestle, and
    Campbell's. Standardizing these labels could help consumers
    make better decisions, they could facilitate donation of safe,
    past-date food, and could also be a win for companies.
        Moving on, I would like to talk about food donation.
    Several of my colleagues, and the Chairman, mentioned the fear
    of exposure to liability, which hampers food donation, but
    strong liability protections already exist. In 1996, Congress
    passed the Bill Emerson Good Samaritan Act which provides a
    very strong Federal floor of civil and criminal liability
    protection to both food donors and the nonprofit organizations
    that distribute food to needy individuals. These organizations
    are protected as long as they don't act with intentional
    misconduct or gross negligence. But 67 percent of manufacturers
    and 54 percent of retailers still say that the main reason they
    don't donate is because of fear of liability.
        Food recovery organizations report that many donors don't
    know about this legislation, or that if they do know, they are
    concerned about the lack of authoritative interpretation of
    some of the key terms.
        The Act has not been challenged in court, so there are no
    judicial interpretations of it, and it was never assigned to
    any agency, so there are no agencies that provide Federal
    guidance for filling these gaps, or provide education about the
    Act. Congress could call on an agency to provide guidance and
    raise awareness about the Act to help address these challenges.
        Closely related to liability is the issue of food safety
    regulations. In our federalist system, regulations for grocery
    stores and restaurants takes place at the state level. State
    health codes vary, but they are mostly based on the FDA Food
    Code. However, the Food Code does not incorporate language
    around food donation, so states lack Federal guidance around
    safe food donation. Including food donations in the Food Code
    or other Federal guidance could help states clarify their
    safety laws and better prioritize food donation.
        Last, I want to mention the opportunity for innovation.
    Organizations have begun to test different entrepreneurial
    approaches to food recovery. Several of our client
    organizations are testing technologies that connect donors and
    food recovery organizations, that convert nonconforming fruits
    and vegetables into new products, or apply retail models to
    provide surplus food at a low cost. As often happens, these
    innovations could not be predicted when the laws were first
    passed, so several existing laws like the Emerson Act actually
    posed barriers to the viability of some of these innovations.
    This Committee could address barriers like this, and create a
    friendlier climate for innovation.
        In conclusion, despite strong laws, barriers persist.
    Addressing the challenges I mentioned, such as standardizing
    date labels, strengthening liability protections and food
    safety guidance, and supporting innovation can reduce the
    amount of food waste, and increase the amount of healthy, safe
    food recovered.
        Thank you.
        [The prepared statement of Ms. Broad Leib follows:]

      Prepared Statement of Emily M. Broad Leib, J.D., Assistant Clinical
    Professor of Law and Director, Food Law and Policy Clinic, Harvard Law
                           School, Jamaica Plain, MA
        Chairman Conaway, Ranking Member Peterson, and Members of the
    Committee, thank you for the opportunity to testify on the laws and
    policies that can help reduce food waste from field to table. My name
    is Emily Broad Leib and I am an Assistant Clinical Professor of Law at
    Harvard Law School and the Director of the Harvard Food Law and Policy
    Clinic (FLPC), a division of the Center for Health Law and Policy
    Innovation. FLPC was established in 2010 to provide legal and policy
    guidance to a range of clients seeking to increase access to healthy
    foods, assist small and sustainable farmers in breaking into new
    commercial markets, and reduce waste of healthy, wholesome food, while
    educating law students about ways to use law and policy to impact the
    food system.
        FLPC has been researching policies to reduce food waste for several
    years. In September 2013, we published a report with the Natural
    Resources Defense Council that analyzed the laws regarding expiration
    dates and explained how these unclear and unregulated labels contribute
    to an alarming amount of unnecessary food waste. Since the publication
    of that report, FLPC has continued to work on the challenge of
    confusing date labels, while also researching other policy
    opportunities to divert surplus food away from the landfills and into
    the homes of those in need. Through our work with a range of clients,
    we have seen intimately the challenges that inhibit food waste
    reduction and food recovery.
        While there is an abundance of food produced in the U.S. every
    year,\1\ a significant amount of this food ends up in business'
    dumpsters and consumers' trash cans, making its way to landfills
    instead of the plates of hungry families.\2\ Forty percent of the food
    produced in the U.S. goes uneaten, resulting in 62.5 million tons of
    wasted food each year.\3\ Food waste in the U.S. has been on the rise
    for the past several decades, with per capita food loss increasing by
    50 percent from 1974 to 2005.\4\ A number of Federal laws strive to
    reduce food waste or promote food recovery, yet several barriers limit
    their effectiveness.
    ---------------------------------------------------------------------------
        \1\ Mark Bittman, How to Feed the World, N.Y. Times, (Oct. 14,
    2013), http://www.nytimes.com/2013/10/15/opinion/how-to-feed-the-
    world.html?pagewanted=all&_r=0.
        \2\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 12
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
        \3\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 10
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
        \4\ Kevin D. Hall, et al., The Progressive Increase of Food Waste
    in America and Its Environmental Impact, 4 PLoS ONE 1, 2(2009), http://
    journals.plos.org/plosone/article?id=10.1371/journal.pone.0007940#pone-
    0007940-g001.
    ---------------------------------------------------------------------------
        Although the best outcome for the environment is to reduce food
    waste at the source, the next best outcome, according to the
    Environmental Protection Agency (EPA) Food Recovery Hierarchy, is
    ensuring that surplus or unused food is used to feed people.\5\
    Fourteen percent of American households were food-insecure during 2014,
    meaning they lacked access to a sufficient amount of food to lead an
    active, healthy lifestyle at some point during the year.\6\ Since,
    according to the Food Recovery Hierarchy, the top two priorities are to
    reduce food waste and get surplus food to people in need, this
    testimony focuses on opportunities in these two categories. This
    testimony is divided into four segments which detail several key ways
    to realign Federal policies in order to overcome some of the hurdles
    that lead to unnecessary food waste or prevent the donation of surplus
    food.
    ---------------------------------------------------------------------------
        \5\ The Food Recovery Hierarchy, U.S. Envtl. Prot. Agency, https://
    www.epa.gov/sustainable-management-food/food-recovery-hierarchy (last
    updated March 31, 2016).
        \6\ Alisha Coleman-Jensen, et al., U.S. Dep't of Agric., Econ.
    Research Serv., Household Food Security in the United States in 2014 4
    (2015), http://www.ers.usda.gov/publications/err-economic-research-
    report/err194.aspx.
    ---------------------------------------------------------------------------
    I. Reducing Food Waste by Standardizing and Clarifying Date Labels
        The growing, transporting, processing, and disposing of uneaten
    food costs the U.S. $218 billion each year, and an estimated \2/3\ of
    this lost economic value occurs at the household level.\7\ Consumer
    confusion over date labels is a top driver of this waste.
    ---------------------------------------------------------------------------
        \7\  ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 12
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
    ---------------------------------------------------------------------------
        No national uniform system for date labeling exists in the U.S.,
    which allows companies to use a dizzying array of labels including
    ``sell by,'' ``use by,'' ``best by,'' and ``expires on.'' \8\ These
    dates are generally not intended as safety indicators; instead, they
    signal a manufacturer's estimate of how long food will taste its best.
    However, consumers mistakenly believe that these dates are indicators
    of safety, and many report throwing food away once the date passes, due
    to fear of safety risks. For the small set of foods that carry some
    risk if consumed after the date, this risk also is not communicated
    clearly to consumers. In our work over the past few years, we have
    identified two key challenges with date labels.
    ---------------------------------------------------------------------------
        \8\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
    & Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
    Food Waste in America 9 (2013), http://www.chlpi.org/wp-content/
    uploads/2013/12/dating-game-report.pdf.
    ---------------------------------------------------------------------------
        First, as we reported in The Dating Game, the absence of Federal
    law governing date labels has allowed states to regulate date labels,
    leading to a wide range of labeling laws in different states. No two
    states have the same law, evidence that they are not based in science
    or sound public policy. Forty-one states plus the District of Columbia
    require date labels on at least some food items, whereas nine states,
    including New York, do not require or regulate date labels on any food
    products (see Figure 1).\9\ The states that regulate date labels also
    vary greatly in their requirements.\10\ Some require the use of labels
    only on narrow categories of food. New Hampshire, for example, requires
    date labels only on containers of cream and pre-wrapped sandwiches.\11\
    Other states have much broader regulations: Massachusetts requires date
    labels on all prepackaged perishable and semi-perishable food
    products.\12\
    ---------------------------------------------------------------------------
        \9\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
    & Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
    Food Waste in America app. B at 32 (2013), http://www.chlpi.org/wp-
    content/uploads/2013/12/dating-game-report.pdf.
        \10\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
    & Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
    Food Waste in America app. C at 35-54 (2013).
        \11\ See, e.g., N.H. Rev. Stat Ann.  184:30-g (2016); N.H. Code
    Admin. R. Agr. 1412.04 (2016).
        \12\ 105 Mass. Code Regs. 520.119 (2016).
    ---------------------------------------------------------------------------
    Figure 1: State Requiring Date Labels on At Least Some Food Products
    States Requiring Date Labels on At Least Some Food Products
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Twenty states and the District of Columbia prohibit or restrict
    sale or donation of food products once the date has passed (see Figure
    2).\13\ These state laws also vary widely. Massachusetts and Oregon
    allow past-date products to be sold, but impose restrictions on sales,
    such as requiring them to be clearly labeled as past-date and separated
    from pre-date products.\14\ Montana, which requires milk to bear a
    ``sell by'' date of 12 days after pasteurization, prohibits milk from
    being sold or ``otherwise offered for public consumption'' after the
    date.\15\
    ---------------------------------------------------------------------------
        \13\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
    & Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
    Food Waste in America 26 (2013), http://www.chlpi.org/wp-content/
    uploads/2013/12/dating-game-report.pdf.
        \14\ See, e.g., 105 Mass. Code Regs. 520.119(f) (2016); Or. Rev.
    Stat.  616.825 (2016).
        \15\ Mont. Admin. R. 32.8.202 (2016).
    ---------------------------------------------------------------------------
    Figure 2: States Regulating Food Sales Past some Label Dates
    States Regulating Food Sales Past Some Label Dates
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Second, we have learned that consumers are confused. On most foods,
    date labels are not intended to communicate safety. Instead,
    manufacturers choose dates based on how long they estimate the food
    will taste its best. They use a variety of quality-based methods to
    determine these dates, including consumer taste tests, literature
    values, product turnover rates, or consumer complaints.\16\
    ---------------------------------------------------------------------------
        \16\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
    & Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
    Food Waste in America 17-18 (2013), http://www.chlpi.org/wp-content/
    uploads/2013/12/dating-game-report.pdf.
    ---------------------------------------------------------------------------
        But many consumers throw away food once the date passes because
    they mistakenly think the date is an indicator of safety. A
    representative national survey conducted in April 2016 by FLPC, the
    National Consumers League, and Johns Hopkins Center for Livable Future,
    found that consumers use date labels to make decisions about discarding
    food: over \1/3\ always discard food close to or past the date on the
    label, and 84% do so at least occasionally.\17\ A third of consumers
    also wrongly think that date labels are federally regulated.\18\ Wasted
    food costs the average American family of four $1,365 to $2,275 per
    year.\19\ Studies in the United Kingdom found that 20% of household
    waste is due to date label confusion.\20\ When consumers misinterpret
    indicators of quality and freshness for indicators of a food's safety,
    this increases the amount of food that is unnecessarily discarded.
    ---------------------------------------------------------------------------
        \17\  Emily Broad Leib, et al., Consumer Perceptions of Date
    Labels: National Survey, (2016), http://www.chlpi.org/wp-content/
    uploads/2013/12/Consumer-Perceptions-on-Date-Labels_May-2016.pdf.
        \18\ Emily Broad Leib, et al., Consumer Perceptions of Date Labels:
    National Survey, (2016), http://www.chlpi.org/wp-content/uploads/2013/
    12/Consumer-Perceptions-on-Date-Labels_May-2016.pdf.
        \19\ Jonathan Bloom, American Wasteland 187 (Da Capo Lifelong
    Books, 2011).
        \20\ Consumer insight: date labels and storage guidance, Waste &
    Resources Action Programme. May 2011. http://www.wrap.org.uk/sites/
    files/wrap/ES%20Technical%20report%20dates_0.pdf (assumes U.S. home
    behaviors are equivalent to those in U.K.).
    ---------------------------------------------------------------------------
        Consumers are also misled, and potentially put at risk, when they
    are not warned of foods that may be unsafe after the date. This is the
    case with certain ready-to-eat foods that are at risk of contamination
    with Listeria monocytogenes. Listeria can reproduce under
    refrigeration, and ready-to-eat foods are not cooked before they are
    consumed, so the Listeria remains on these products.\21\ A joint FDA/
    USDA study identified several foods in this category, including deli
    meats and unpasteurized dairy items.\22\ Clearer date labels could
    better serve consumers by identifying foods that may become unsafe
    after the date.
    ---------------------------------------------------------------------------
        \21\ Centers for Disease Control and Prevention, Listeria (Jan. 2,
    2013), http://www.cdc.gov/listeria/risk.html.
        \22\ Ctr. for Food Safety & Applied Nutrition, Food & Drug Admin. &
    Food Safety & Inspection Serv., U.S. Dep't of Agric., Quantitative
    Assessment of Relative Risk to Public Health from Foodborne Listeria
    monocytogenes Among Selected Categories of Ready-to-Eat Foods (2003).
    ---------------------------------------------------------------------------
        In addition to food waste by consumers, thousands of pounds of food
    are also needlessly trashed before they reach the consumer because the
    date has passed. A report sponsored by the Grocery Manufacturers
    Association and the Food Marketing Institute estimated that about $900
    million worth of inventory was removed from the supply chain in 2001
    due to expiration dates.\23\ Fifteen years later, this number has
    likely only increased.
    ---------------------------------------------------------------------------
        \23\  Raftery Resource Network, Inc., Expired Product Project,
    Developed for the Joint Industry Unsaleables Steering Committee of
    Grocery Manufacturers of America & Food Marketing Institute 2 (July
    2003), http:// www.gmaonline.org/downloads/research-and-reports/
    expiredproducts.pdf.
    ---------------------------------------------------------------------------
        Internationally, most date label regulations, including the
    standards in place throughout the European Union, utilize a dual label
    system that requires a standard quality label on foods where freshness
    is a concern and a standard safety label on foods that carry a safety
    risk past the date.\24\ ReFED, a collaboration of business, nonprofit,
    foundation, and government leaders committed to reducing food waste,
    found in its Roadmap to Reduce Food Waste by 20 Percent that
    standardizing date labels was the most cost effective of 27 potential
    solutions. They report that standardizing date labels has the potential
    to divert 398,000 tons of food waste per year and provide $1.8 billion
    per year in economic value.\25\ Having one clear indicator on a food
    product to let consumers know if it is a quality label or a safety
    label could reduce food wasted due to consumer confusion and also keep
    consumers safe.
    ---------------------------------------------------------------------------
        \24\ Directive 2000/13/EC of the European Parliament and the
    Council on the approximation of the laws of the Member States, Art. 3
    (``E.U. Food Labeling Directive''). The Directive is implemented in
    Great Britain by the Food Labelling Regulations 1996 (FLR). According
    to the FLR, ``food ready for delivery to the ultimate consumer or to
    catering establishments must carry an `appropriate durability
    indication,' '' in the form of either a ``best before'' date or a ``use
    by'' date. Great Britain Food Labelling Regulations 1996, 1996 No. 1499
    (20)-(22).
        \25\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
    ---------------------------------------------------------------------------
        More education is needed to help ensure past-date food is not
    needlessly wasted. Standardizing date labels could make it easier for
    Federal agencies and other organizations to conduct such education.
    Indeed, education will be needed to ensure the success of standard date
    labels if such standards are created. In addition to reducing waste in
    consumers' homes, clarifying date labels also can ensure that more
    wholesome past-date food is donated. Many food businesses are unsure
    whether past-date food is safe, whether its donation is lawful, and
    whether they will receive liability protection. This makes them
    reluctant to donate past-date foods. Further, food bank recipients,
    like other consumers, are confused about date labels and hesitant to
    consume past-date foods. Standard date labels could make clear which
    foods could be safely donated and consumed after the date and which
    cannot, reducing waste at all levels of the supply chain.
    II. Increasing Donations by Food Manufacturers, Retailers, and
            Restaurants
        Great potential also exists to increase the amount of healthy,
    wholesome food that is donated. ReFED found that consumer-facing
    businesses, such as retailers and restaurants, generated 40 percent (25
    million tons) of food waste and food manufacturers generated two
    percent (1 million tons).\26\ Yet, according to a report jointly
    sponsored by the Grocery Manufacturers Association and the Food
    Marketing Institute, in 2011 only 1.6% of food deemed unsaleable by
    food manufacturers was recovered for human consumption; among food
    retailers and wholesalers only 17.9% was recovered.\27\ The sheer
    amount of food being sent to the landfill instead of donated in these
    sectors is evidence that more can and should be done to mitigate food
    waste.
    ---------------------------------------------------------------------------
        \26\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 13
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
        \27\ BSR, Analysis of U.S. Food Waste Among Food Manufacturers,
    Retailers, & Wholesalers 9-10 (2013), http://www.foodwastealliance.org/
    wp-content/uploads/2013/06/FWRA_
    BSR_Tier2_FINAL.pdf.
    ---------------------------------------------------------------------------
        Food manufacturers and retailers make individual calculations when
    deciding whether or not to donate surplus foods, but two key elements
    generally play a role in such decisions: cost and liability.
    Fortunately, Congress helped to address the cost of donation with the
    recent Fiscal Year 2016 omnibus budget, which expanded opportunities to
    claim an enhanced tax deduction for food donation to all businesses and
    increased the cap on this deduction (some businesses like farms can
    still use extra help; see Section IV for more information).\28\ Federal
    law also provides very strong liability protection for food donations,
    yet more can be done to strengthen these liability protections and help
    tip the scale in business decisions regarding whether to donate.
    ---------------------------------------------------------------------------
        \28\ H.R. 2029, 114th Cong.  113(a) (2015) (to be codified at
    I.R.C.  170(e)(3)(C)).
    ---------------------------------------------------------------------------
    Liability Protections
        Many food manufacturers, retailers, and wholesalers cite fear of
    liability as a primary deterrent to donating food.\29\ A 2014 survey
    conducted by the Food Waste Reduction Alliance, a joint industry task
    force comprised of leading companies and trade associations in the
    food, beverage, food service, and food retail industries, found that
    67% of food manufacturers and 54% of retailers and wholesalers cite
    liability as one of the main barriers to food donation.\30\ However,
    strong Federal and state liability protections exist for the donation
    of food items.
    ---------------------------------------------------------------------------
        \29\ Food Waste Reduction Alliance, Analysis of U.S. Food Waste
    Among Food Manufacturers, Retailers, and Restaurants, 13, 16 (2014)
    http://www.foodwastealliance.org/wp-content/uploads/2014/11/
    FWRA_BSR_Tier3_FINAL.pdf.
        \30\ Food Waste Reduction Alliance, Analysis of U.S. Food Waste
    Among Food Manufacturers, Retailers, and Restaurants, 13, 16 (2014)
    http://www.foodwastealliance.org/wp-content/uploads/2014/11/
    FWRA_BSR_Tier3_FINAL.pdf.
    ---------------------------------------------------------------------------
        In 1996, Congress passed the Bill Emerson Good Samaritan Food
    Donation Act (Emerson Act), which provides a Federal floor of civil and
    criminal liability protection to food donors and nonprofit
    organizations that distribute food.\31\ The Emerson Act protects a
    broad range of food donors, including individuals, businesses,
    nonprofit organizations, government entities, and gleaners--individual
    or entities that harvest and donate agricultural crops.\32\ The
    protection applies so long as they donate ``apparently wholesome food''
    in ``good faith'' and do not act with intentional misconduct or gross
    negligence.\33\ In addition to this Federal protection, all 50 states
    and Washington, D.C. have passed their own state-level Good Samaritan
    acts, but the protection provided and foods covered vary from state to
    state.\34\
    ---------------------------------------------------------------------------
        \31\ 42 U.S.C.A.  1791 (2016).
        \32\ 42 U.S.C.A.  1791(b)(9) (2016).
        \33\ 42 U.S.C.A.  1791(c) (2016).
        \34\ H.R. Rep. No. 104-661, at 3. (1996); D.C. Code Ann.  48-301
    (West 2016).
    ---------------------------------------------------------------------------
        Despite this strong protection, why do so many potential food
    donors still decline to donate because of liability fears? Food
    recovery organizations report that many potential donors are unaware of
    liability protection or the Emerson Act, and it is difficult to spread
    the word to those who are not already donating.\35\ Those that do know
    about the Act are concerned about the lack of authoritative
    interpretation of its key terms, including ``needy individual'' and
    ``apparently wholesome food.'' The Emerson Act has not been challenged
    court, so no judicial interpretations of it exist.\36\ There is also no
    agency guidance interpreting the Act. Part of the reason for the lack
    of interpretative guidance is that, unlike many statutes, which
    delegate power to an agency to interpret and enforce them, authority
    under the Emerson Act was never assigned to a particular Federal
    agency. Thus, no agency is required to provide Federal guidance or
    raise awareness of the Act. Potential donors have only the 1996
    statutory language on which to base decisions regarding their coverage.
    One way to clarify the scope of the Emerson Act and promote public
    awareness is to assign authority to a specific executive agency to
    oversee and interpret this legislation.
    ---------------------------------------------------------------------------
        \35\ See, e.g., Telephone Interview with Emily Malina, Chief
    Product Officer, Spoiler Alert (Nov. 13, 2015).
        \36\ University of Arkansas, Food Recovery: A Legal Guide 3 (2013),
    http://law.uark.edu/documents/2013/06/Legal-Guide-To-Food-Recovery.pdf.
    ---------------------------------------------------------------------------
        In addition, the Emerson Act could be examined for further
    opportunities to increase food donation. For example, the Emerson Act
    only covers foods that comply with or are reconditioned to comply with
    all Federal, state, and local quality and labeling standards.\37\
    Federal law includes several labeling requirements, such as name of the
    food, manufacturer's address, net quantity of contents, an ingredient
    list (which includes allergen information) and nutrition facts
    panel.\38\ Some of these labels are not necessary to ensure that
    donated food is safe. Ingredient lists or allergen warnings are
    important for safety, but the net weight is not. Fear of facing
    liability due to donating mislabeled food, even if the mislabeling is
    not pertinent to food safety, is a major impediment to food
    donation.\39\ Often food goes to waste precisely because there is a
    deficiency in its labeling, so salvaging food that is mislabeled in a
    way not relevant to safety could help to prevent unnecessary waste. The
    Emerson Act also does not explicitly state that donations of past-date
    foods are protected from liability and, as a result, past-date food
    that is perfectly safe for consumption often winds up in landfills.
    ---------------------------------------------------------------------------
        \37\ 42 U.S.C.A.  1791(e) (West 2015).
        \38\ U.S. Food and Drug Administration, Guidance for Industry: A
    Food Labeling Guide,
    http://www.fda.gov/Food/GuidanceRegulation/
    GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm2006828.htm
    (last visited Dec. 6, 2015).
        \39\ Food Waste Reduction Alliance, Analysis of U.S. Food Waste
    Among Food Manufacturers, Retailers, and Restaurants, 13 (2014), http:/
    /www.foodwastealliance.org/wp-content/uploads/2014/11/
    FWRA_BSR_Tier3_FINAL.pdf.
    ---------------------------------------------------------------------------
        Despite the strong liability protection in the Emerson Act, many
    businesses still fail to donate because of liability concerns. The
    ReFED report found that educating potential food donors on donation
    liability laws has the potential to divert 57,000 tons of food waste
    from the landfill.\40\ More can be done to put donors at ease about the
    protections, raise awareness of the Act, and strengthen its provisions.
    ---------------------------------------------------------------------------
        \40\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
    ---------------------------------------------------------------------------
    Food Safety
        Closely related to liability is the issue of compliance with food
    safety regulations. Even if they know they will be protected from
    liability, businesses are fearful of doing something that may run afoul
    of their health inspectors. Most food safety regulations that impact
    food donation are created at the state level, so businesses have to
    understand and comply with state regulations and their interpretations
    by state and local health departments. Yet these regulators and health
    inspectors often are not aware of the importance of food donations or
    the best practices for safely and economically donating food. Food
    donors and recovery organizations lament the lack of guidance on rules
    for food donation in their states, or the hesitation on the part of
    health inspectors to allow donation programs to proceed.
        States have authority over food safety rules for foods that are
    sold within the state, but the FDA plays a key role in creating state
    regulations through dissemination of food safety knowledge through the
    FDA Food Code. The Food Code is a model code created with the help of
    the Conference for Food Protection (CFP), an organization made up of
    industry, government, and consumer groups who develop and promote food
    safety standards.\41\ The Food Code is released every 4 years and
    adopted by most states.\42\ However, the Food Code does not include
    model language regarding donation, meaning states lack guidance on
    incorporating food donation provisions into their laws.
    ---------------------------------------------------------------------------
        \41\ About the Conference, Conference for Food Protection, http://
    www.foodprotect.org/about/ (last visited Apr. 26, 2016).
        \42\ FDA Food Code, U.S. Dep't of Health & Human Servs., Food &
    Drug Admin., http://www.fda.gov/downloads/Food/GuidanceRegulation/
    RetailFoodProtection/FoodCode/UCM374510.pdf (last visited Apr. 28,
    2016).
    ---------------------------------------------------------------------------
        In the late 1990s, USDA and FDA recognized the need for model
    guidance regarding food donation and, using the expertise of the CFP,
    created the Comprehensive Guidelines for Food Recovery Programs.\43\
    The Guidelines provide information on maintaining a safe food recovery
    program (based on the Food Code); statistics on food waste and food
    recovery; food recovery activities undertaken by the government; and
    legal protections for food recovery.\44\ The Guidelines serve as a
    useful resource; however, they target businesses rather than
    regulators. The Guidelines are only briefly summarized in the appendix
    of the Food Code.\45\ Because of the ubiquity of the Food Code,\46\
    including food donation language in the Food Code, rather than just
    mentioning the Guidelines in an appendix, could ensure familiarity with
    best practices for food donation among state and local food safety
    officials, who are the ones making decisions about whether to allow
    regulated businesses to donate. Federal leadership can encourage states
    to make donation a priority; whether through the addition of language
    on food donation to the Food Code or otherwise disseminating best
    practices to state regulators.
    ---------------------------------------------------------------------------
        \43\ Food Recovery Committee, Conference for Food Protection,
    Comprehensive Guidelines for Food Recovery Programs 6 (2000), http://
    www.foodprotect.org/media/guide/food-recovery-final2007.pdf.
        \44\ Food Recovery Committee, Conference for Food Protection,
    Comprehensive Guidelines for Food Recovery Programs 6 (2000), http://
    www.foodprotect.org/media/guide/food-recovery-final2007.pdf.
        \45\ U.S. Dep't Health & Human Services, Food and Drug
    Administration, Food Code app. 2 at 321-22 (2013), http://www.fda.gov/
    downloads/Food/GuidanceRegulation/RetailFood
    Protection/FoodCode/UCM374510.pdf.
        \46\ As of 2012, all 50 states had adopted retail codes modeled
    after versions of the Food Code. The Food Code is intended as a model
    for government agencies at all levels that regulate restaurants,
    grocery stores, and other food service operations. See U.S. Dep't
    Health & Human Services, Food and Drug Administration, Introduction to
    the 2013 Food Code (2013), http://www.fda.gov/downloads/Food/
    GuidanceRegulation/RetailFoodProtection/FoodCode/UCM374510.pdf.
    ---------------------------------------------------------------------------
        In addition to the dissemination challenges, the Guidelines are not
    updated on a regular schedule. The Guidelines were last released in
    2007, yet the FDA Food Code has been updated twice since then, leaving
    outdated food safety language and guidance in the Guidelines. In April
    2016, CFP approved a new version of the Guidelines to be released
    shortly.\47\ Although new Guidelines will be released this summer, they
    will soon become outdated if they are not updated regularly. Updating
    the Guidelines every 4 years, the same rate the FDA Food Code, could
    ensure that the Guidelines stay up to date.\48\
    ---------------------------------------------------------------------------
        \47\ Committee Final Report, Conference for Food Protection 1 (Jan.
    29, 2016), http://www.foodprotect.org/issues/packets/2016Packet/
    attachments/I_011_content_a.pdf.
        \48\ Real Progress in Food Code Adoption, U.S. Food & Drug
    Administration 1 (Feb. 22, 2016),
    ---------------------------------------------------------------------------
        Each year, food manufacturers, wholesalers, and retailers waste
    billions of pounds of food. Clarifying the language of the Emerson Act,
    removing some of the non-essential restrictions in the Emerson Act, and
    regularly providing food safety guidance that better targets state
    regulators can dispel some of the concerns with liability and help
    reduce the amount of food unnecessarily wasted each year.
    III. Supporting Innovative Food Recovery Models
        In recent years, organizations and individuals have begun to test
    entrepreneurial approaches to food recovery. Our clients and partners
    are testing technologies to connect donors and recovery organizations,
    converting nonconforming fruits and vegetables into new products, like
    juices and soups, or applying retail models to provide surplus food at
    a low cost.\49\ As often happens, innovations could not be predicted
    when laws were created, and several existing laws pose barriers. This
    Committee could further research ways to support innovation.
    ---------------------------------------------------------------------------
        \49\ See, e.g., FAQs, Daily Table, http://dailytable.org/faqs/
    (last visited Jan. 19, 2016); Lorena Galliot, This New Startup Wants to
    Sell You Ugly Fruit and Veggies, Grist (May 8, 2015),
    http://grist.org/food/this-new-startup-wants-to-sell-you-ugly-fruit-
    and-veggies/.
    ---------------------------------------------------------------------------
        As one example, some nonprofit organizations are following the
    model of ``social supermarkets,'' popularized in Europe, to sell
    surplus foods in a low-cost grocery.\50\ These organizations can fill a
    need in communities where individuals are food-insecure or lack regular
    food access, but for various reasons are not willing or able to qualify
    for government assistance or use a food pantry or soup kitchen. They
    also offer the potential for a sustainable solution to food recovery,
    as they can use customer payments to offset the costs of labor,
    storage, and transportation of recovered food. ReFED's Roadmap found
    that innovative retail models and secondary resellers have the
    potential to divert 167,000 tons of food waste per year and provide
    $36.4 million per year in economic value.\51\
    ---------------------------------------------------------------------------
        \50\ Serri Graslie, Social Supermarkets A `Win-Win-Win' For
    Europe's Poor, NPR (Dec. 13, 2013); Rebecca Smithers, UK's first
    `social supermarket' opens to help fight food poverty, The Guardian
    (Dec. 8, 2013).
        \51\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
    ---------------------------------------------------------------------------
        But these models face several challenges to their success. For
    example, food donations to these organizations are not protected under
    the Emerson Act unless the ultimate recipient ``does not have to give
    anything of monetary value.'' \52\ The Act does not provide liability
    protection to the food donor when the ultimate recipient pays, even at
    a reduced rate, for the food. The protection under the Act does not
    need to be structured in this way. For example, Massachusetts provides
    liability protection to those who donate to a nonprofit that charges
    the final recipient for food at a level to ``cover the cost of handling
    such food.'' \53\ Oregon provides liability protection to donors who
    give to a nonprofit that charges the final recipient based ``on a scale
    reflecting ability to pay or only requiring a shared maintenance
    contribution.'' \54\ These examples show ways to offer liability
    protection to innovative nonprofit food recovery organizations and
    their donors. Notably, although these organizations are selling food
    instead of giving it away for free, they are still nonprofit
    organizations organized and operated solely ``for religious,
    charitable, or educational purposes.'' \55\ The nonprofit requirement
    ensures that food and any profits will be used for a charitable
    purpose. Any revenue-generating activities of these organizations would
    be conducted in furtherance of the enterprise's social mission, rather
    than for profit-maximizing purposes.
    ---------------------------------------------------------------------------
        \52\ 42 U.S.C.A.  1791(b)(3) (West 2016).
        \53\ Mass. Gen. Laws ANN. 94  328 (West 2016).
        \54\ Or. Rev. Stat. Ann.  30.890 (West 2016).
        \55\ 42 U.S.C.A.  1791(c)(1) (West 2015).
    ---------------------------------------------------------------------------
        The Emerson Act was enacted to encourage food donations; however,
    the ``no-charge'' provision deters donors from donating to innovative
    nonprofit social supermarkets and discourages traditional food recovery
    organizations from testing out new models. Similarly, the Federal
    enhanced tax deduction for food donation limits the enhanced deduction
    to foods that are given away for free to needy individuals and not ``in
    exchange for money, other property, or services,'' \56\ meaning
    donations made to organizations that sell the food are not eligible for
    the enhanced deduction. Food donors are less likely to donate to an
    innovative food recovery organization that is not covered by the
    Federal liability protection and cannot offer them an enhanced tax
    deduction when they could instead donate to an organization that
    provides liability protection and an enhanced deduction, hampering the
    development of these new organizations.
    ---------------------------------------------------------------------------
        \56\ I.R.C.  170(e)(3)(A)(ii) (2016).
    ---------------------------------------------------------------------------
        These provisions also constrain traditional food recovery
    organizations from broadening their offerings. According to a report by
    Feeding America, ``Emergency food from pantries . . . are now a part of
    households' long term strategies to supplement monthly shortfalls in
    food.'' \57\ As a result of this increasing demand, ``[F]ood banks
    across the nation continue to be stretched thin in their efforts to
    meet sustained high need in the wake of the recession.'' \58\ Since
    these organizations rely on food donations, it would be
    counterproductive to do anything that prevents their donors from
    receiving the enhanced deduction or causes them to lose their liability
    protection, such as selling the donated food at a low cost. Food banks
    struggle to receive not only donations of wholesome, safe food, but
    also to receive monetary donations to help pay their labor,
    transportation, administrative, and other costs. Providing some of
    their food offerings for sale using a low-cost grocery model could help
    to bring in income and support their broader operations, while
    potentially serving a broader client base. Organizations like Goodwill
    and Salvation Army offer a model of using sales of certain items to
    raise money to support their free services. Allowing food banks to do
    the same would help to finance their ongoing work supporting
    individuals and families, while serving a broader population.
    ---------------------------------------------------------------------------
        \57\ Feeding America, Food Banks: Hunger's New Staple: Preliminary
    Findings 3 (2011),
    http://feedingamerica.org/hunger-in-america/hunger-studies//media/
    hunger-new-staple-exec-summ.ashx?.pdf.
        \58\ $5 Billion Cut To Food Stamp Program Will Strain Food Banks:
    Feeding America Braces for a Significant Increase in Need, Feeding Am.
    (Oct. 25, 2013), http://www.feedingamerica.org/hunger-in-america/news-
    and-updates/press-room/press-releases/5-billion-cut-to-food-stamp-
    program-will-strain-food-banks.html.
    ---------------------------------------------------------------------------
        The lack of liability protections or eligibility for enhanced tax
    deductions for donors to nonprofit ``social supermarkets'' offer just a
    few examples of the types of barriers that exist to innovation in the
    field of food recovery. Other innovative new models are struggling with
    a variety of similar or diverse challenges. Federal leadership could
    help to catalogue these barriers and evaluate whether modifications
    could create a friendlier climate for food recovery innovation while
    supporting the ultimate goals of food waste reduction, food safety, and
    food security.
    IV. Improve Opportunities To Recover Wholesome, Fresh Food from the
            Farm
        On farms, approximately 10.1 million tons of food remain
    unharvested each year, often because market conditions make harvest
    uneconomical, leaving edible produce to rot in the field.\59\ Even more
    crops are wasted post-harvest because they do not meet quality or
    appearance criteria, thus rendering them unsaleable despite being
    edible and nutritious.\60\ While farms have an abundance of food that
    could be donated, preparing, storing, and transporting this food for
    donation can be quite expensive.
    ---------------------------------------------------------------------------
        \59\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
        \60\ Dana Gunders, Nat. Res. Def. Council, Wasted: How America Is
    Losing Up to 40% of Its Food from Farm to Fork to Landfill 8 (2012).
    ---------------------------------------------------------------------------
        Farmers have to pay additional labor costs to harvest the crops
    that would otherwise be left in the fields. The food needs to be
    stored, cooled, and packed until it is ready to be delivered to a food
    recovery organization.\61\ The cost of preparing the food for donation
    can be large-packing and cooling donated produce alone could cost
    thousands of dollars,\62\ and meat from surplus animals must be
    processed into edible food before it is donated, which could also be
    quite expensive.
    ---------------------------------------------------------------------------
        \61\ See, e.g., Community Solutions Act of 2001: Hearing on H.R. 7
    Before the Subcomm. on Human Res. & the Subcomm. on Select Revenue
    Measures of the H. Comm. on Ways and Means, 107th Cong. 98, 100-01
    (2001) (statement of Bill Reighard, President, Food Donation
    Connection).
        \62\ See, e.g., 2012 Cost Estimates of Establishing, Producing, and
    Packing Red Delicious Apples in Washington, Wash. State Univ. Extension
    3 (2012), http://cru.cahe.wsu.edu/CEPublications/FS099E/FS099E.pdf
    (noting that when a 25 acre orchard was in full production, it paid on
    average $12,000 annually for packing costs).
    ---------------------------------------------------------------------------
        This food must then be transported to a food recovery organization.
    Transporting donated food requires a vehicle (sometimes one with
    refrigeration), a driver, gas, and other vehicle maintenance and repair
    expenses. This can be quite costly: one food recovery organization that
    uses refrigerated trucks to rescue and deliver surplus food estimates
    that it spends $9,900 a week to run, maintain, and repair its four
    trucks, pay its drivers, and cover additional operating costs.\63\ Many
    farmers rely on volunteer groups or food recovery organizations to
    transport the food for them. But in the many cases where local food
    recovery organizations simply do not have the capacity to transport the
    food, would-be donors find it more cost-effective to let the food rot
    in the field instead of paying for transportation.\64\
    ---------------------------------------------------------------------------
        \63\ Telephone Interview with Lauren Palumbo, Chief Operating
    Officer, Lovin' Spoonfuls (Nov. 15, 2015) (noting that the costs of
    trucks, repairs and maintenance, gas, and the driver's salary cost this
    food recovery organization .33 a pound and Lovin' Spoonfuls recovers on
    average 30,000 pounds of food each week).
        \64\ See, e.g., Stacey H. Van Zuiden, The Good Food Fight for Good
    Samaritans: The History of Alleviating Liability and Equalizing Tax
    Incentives for Food Donors, 17 Drake J. Agric. L. 237, 250 (2012).
    ---------------------------------------------------------------------------
        To help address some of the costs involved in donating food, the
    Federal Government (and several state governments) provides tax
    incentives. There are two types of Federal tax incentives available for
    food donors--a general deduction that applies to all charitable
    contributions and an enhanced tax deduction that applies to qualified
    food donations. In comparison to the general deduction (which only
    allows a business to deduct the basis value of the product), the
    enhanced deduction allows businesses to deduct almost twice as much as
    the general deduction. It allows businesses to deduct the smaller of
    (a) twice the basis of the donated food or (b) the basis of the donated
    food plus \1/2\ of the food's expected profit margin.\65\
    ---------------------------------------------------------------------------
        \65\ I.R.C.  170(e)(3)(B) (2015).
    ---------------------------------------------------------------------------
        FLPC applauds Congress on the Fiscal Year 2016 omnibus budget,
    which expanded opportunities to claim the enhanced tax deduction to all
    qualifying businesses that donate food; in the past, the enhanced
    deduction was only available to C-corporations.\66\ The 2016 omnibus
    budget also increased the overall cap for the enhanced deduction,
    strengthened and clarified the formula for calculating the deduction,
    and clarified the method for determining the FMV of unsaleable food
    products.\67\ Congress has taken a significant step toward increasing
    food donations. Congress or an executive agency should monitor the
    effectiveness of the expansion of the enhanced tax deduction over time
    to determine if further changes need to be made to encourage food
    donations.
    ---------------------------------------------------------------------------
        \66\ H.R. 2029, 114th Cong.  113(a) (2015) (to be codified at
    I.R.C.  170(e)(3)(C)); Tax Reform Act of 1976, Pub. L. No. 94-455,
    2135, 90 Stat. 1525, 1928-29, (1976) (codified as amended at I.R.C.
    170(e)(3)).
        \67\ H.R. 2029, 114th Cong.  113 (2015) (to be codified at I.R.C.
     170(e)(3)(C)).
    ---------------------------------------------------------------------------
        Despite expansion of the availability of Federal tax incentives,
    the costs involved in donating food still pose challenges for farmers.
    One challenge is that farmers operate with very low profit margins.\68\
    Most U.S. farms are not profitable at all as ongoing businesses.\69\
    According to the U.S. Department of Agriculture (USDA), 69 percent of
    all U.S. farms were in the operating profit margin (OPM) ``critical
    zone'' in 2013.\70\ Profit margins are even worse for smaller farms,
    which might not earn enough from the sale of farm produce and services
    to cover their expenses.\71\ Since many farmers operate on a low profit
    margin, it is difficult for them to benefit from a tax deduction
    because a deduction only reduces the amount of taxable income, meaning
    the value of the deduction is contingent on the amount of taxable
    income (which, for farms and especially small farms, might not be very
    large.)
    ---------------------------------------------------------------------------
        \68\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
    2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
    amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
    size.aspx#.VpU3B5MrLVo.
        \69\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
    2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
    amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
    size.aspx#.VpU3B5MrLVo.
        \70\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
    2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
    amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
    size.aspx#.VpU3B5MrLVo.
        \71\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
    2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
    amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
    size.aspx#.VpU3B5MrLVo.
    ---------------------------------------------------------------------------
        Another challenge to donation by farmers or other low-profit-margin
    businesses is the lack of coverage for the ancillary costs of food
    donation. As outlined previously, farms face the steepest costs in
    getting food to food recovery organizations. Yet, the enhanced
    deduction does not explicitly provide coverage for the ancillary costs
    associated with food recovery.\72\ It is not in the financial interest
    of farmers to incur these costs when they are not offset by tax
    incentives, thus, much of this food continues to go to waste.
    California helps alleviate some of these costs by offering a tax credit
    that explicitly covers 50% of the costs incurred by the taxpayer in
    connection with the transportation of donated food.\73\ Because many
    businesses cite the costs of transporting donated food items as a key
    barrier to donation, California's model is worth analyzing for
    potential applicability nationally.
    ---------------------------------------------------------------------------
        \72\ Community Solutions Act of 2001: Hearing on H.R. 7 Before the
    Subcomm. on Human Res. & the Subcomm. on Select Revenue Measures of the
    H. Comm. on Ways and Means, 107th Cong. 98, 100-01 (2001) (statement of
    Bill Reighard, President, Food Donation Connection) (testifying
    businesses are losing money due to the costs associated with properly
    saving excess food); see also 42 U.S.C.  1791 (2015) (requiring that
    donated food must meet all applicable state and local food quality and
    labeling standards in addition to Federal requirements); [I].R.C.
    170(e)(1) (2015); Charitable Contributions: For Use in Preparing 2014
    Tax Returns, I.R.S., Dep't of Treasury (Jan. 13, 2015), http://
    www.irs.gov/pub/irs-pdf/p526.pdf.
        \73\ Cal. Rev. & Tax. Code  17053.12 (2015), http://
    leginfo.legislature.ca.gov/faces/
    codes_displaySection.xhtml?lawCode=RTC§ionNum=17053.12.
    ---------------------------------------------------------------------------
        Because many farms operate on very low profit margins, any
    additional economic benefit they can receive for excess food that they
    grew but could not sell could increase their profit margins and keep
    them in business. At the same time, food straight from the farm is
    often some of the healthiest food available, so incentivizing the
    donation of this food can greatly benefit food-insecure Americans. A
    tax credit, which is not contingent on the size of a donor's taxable
    income, could provide a larger incentive for farmers. To offset the
    specific costs that are most problematic for farmers, such a credit
    could also explicitly provide coverage for the ancillary costs
    associated with food donation, like transportation or storage. Other
    incentive models should also be examined for potential to address the
    unique challenges and costs faced by farmers attempting to recover
    healthy, wholesome food.
    V. Conclusion
        Forty percent of the food produced in the U.S. goes uneaten,
    resulting in 62.5 million tons of wasted food each year.\74\ This waste
    results in the loss of natural resources, including the 25% of the
    U.S.'s fresh water and 300 million barrels of oil that are used to
    produce food that ends up in landfills.\75\ Food waste presents a grave
    threat to our economy, our health, and our environment. It has been
    estimated that redistributing just 30 percent of all the food lost in
    the United States could feed every food-insecure American their total
    diet.\76\ Despite several compelling policies, current laws still
    perpetuate barriers to food conservation and recovery. Addressing the
    barriers identified above can significantly reduce the amount of food
    waste and increase the amount of healthy, safe and wholesome food
    recovered across the food system.
    ---------------------------------------------------------------------------
        \74\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 10
    (2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
        \75\  Kevin D. Hall, et al., The Progressive Increase of Food Waste
    in America and Its Environmental Impact, PLoS ONE 4(11): e7940, (2009),
    http://journals.plos.org/plosone/article?id=10.1371/
    journal.pone.0007940.
        \76\ Dana Gunders, Natural Resources Def. Council, Wasted: How
    America is Losing Up to 40% of its Food From Farm to Fork to Landfill 4
    (2012).
    ---------------------------------------------------------------------------
                                  Attachment 1
    Consumer Perceptions of Date Labels: National Survey
        Authors: Emily Broad Leib, Christina Rice, Roni Neff, Marie Spiker,
    Ali Schklair, Sally Greenberg.
    Background & Methods
        Each year, 40% of the United States food supply goes to waste.\1\
    The growing, transporting, processing, and disposing of this uneaten
    food costs us $218 billion each year, and \2/3\ of this lost economic
    value is due to household food waste.\2\ An important driver of
    household food waste is consumer confusion over date labels.\3\ Date
    labels are those dates that are applied to foods and accompanied by
    prefixes such as ``sell by,'' ``best before,'' and ``use by,'' among
    others. A U.K. study found that 20% of consumer waste occurs because of
    date label confusion.\4\
        Because date labels are not federally regulated and state-level
    regulations, where they exist, are inconsistent, consumers face a
    dizzying array of unstandardized labels on their food products. Many
    people throw away food once the date passes because they mistakenly
    think the date is an indicator of safety, but in fact for most foods
    the date is a manufacturer's best guess as to how long the product will
    be at its peak quality. With only a few exceptions, the majority of
    food products remain wholesome and safe to eat long past their
    expiration dates. When consumers misinterpret indicators of quality and
    freshness for indicators of a food's safety, this increases the amount
    of food that is unnecessarily discarded. A recent report found that
    standardizing date labeling is the most cost-effective solution for
    reducing food waste, and could help to divert 398,000 tons of the food
    that is wasted each year.\2\
        We conducted a survey to gain further insights into consumer
    perceptions of date labels. This survey was fielded online to a
    demographically representative sample of 1,029 adults from April 7-10,
    2016. These questions were part of a CARAVAN' omnibus survey
    that is conducted twice a week by ORC International. The findings
    presented here are one piece of a larger analysis of consumer
    perceptions of date labels.
    Take Home Messages
        Our findings confirm that consumers use date labels to make
    decisions about discarding food: over \1/3\ always discard food close
    to or past the date on the label, and 84% do so at least occasionally.
    One-third of consumers wrongly think that date labels are federally
    regulated, and another 26% are unsure. The survey found that for future
    data label standardization, some labels would be particularly effective
    in communicating with consumers. ``Best if used by'' was most commonly
    seen as an indicator of food quality (70%) and only 12% viewed it as a
    food safety label. ``Expires on'' was most commonly seen as an
    indicator of food safety (54%), and relatively few respondents (23%)
    saw it as referring to quality. Because all six of the labels we tested
    are currently used as quality indicators, many foods with the ``expires
    on'' label are unnecessarily wasted. We can build on consumer
    perceptions of the meanings of different labels to help consumers
    better identify date labels that indicate safety versus those that are
    only intending to communicate peak quality.
        Millenials were more likely to view date labels as indicators of
    food safety, more likely to think date labels are federally regulated,
    and more likely to discard food past the date on the label.
    Detailed Findings
        Consumers use date labels to make decisions about discarding food.

        Over \1/3\ of the population (37%) says they always or usually
    throw away food because it is close to or past the date that appears on
    the package. 84% of consumers throw out food based on date labels at
    least occasionally. Notably, younger consumers (age 18-34) were most
    likely to discard food based on the date label, while older consumers
    (65+) were the least likely to do so.
    84% of Consumers At Least Occasionally Discard Food Close To Or Past
            the Date on Its Package
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Consumers have misperceptions and uncertainty about what date
    labels actually mean.

        We examined perceptions of six date labels: ``best by,'' ``best if
    used by,'' ``expires on,'' ``freshest by,'' ``sell by,'' and ``use
    by.'' The survey found a striking amount of diversity in interpretation
    of the meaning of these labels, suggesting a need to standardize
    labeling and better educate consumers. The labels most commonly
    perceived as indicators of food quality were ``best if used by,''
    ``best by,'' and ``freshest by,'' which were perceived as indicators of
    quality by 70%, 67%, and 62% of consumers, respectively. Both ``best if
    used by'' and ``best by'' were also relatively unlikely to be
    misperceived as food safety labels. However, ``freshest by'' was more
    confusing to consumers, with 9% seeing it as a food safety label and
    11% unsure of the meaning. About half the respondents saw ``expires
    on'' (54%) as an indicator of food safety. Many respondents also saw
    ``use by'' (42%) as an indicator of food safety; however, 40% of
    respondents perceived ``use by'' as a quality label. The majority of
    consumers correctly interpreted the ``sell by'' label as an indicator
    to stores about when to stop selling food (81%). Nonetheless, still 7%
    saw it as a safety label and 9% as a quality label. Younger consumers
    (age 18-34) were most likely to view all of these labels as food safety
    labels, while those aged 65+ were least likely to do so.
    Consumer Confusion Over Date Labels
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        One-third of consumers wrongly think that date labels are federally
    regulated.

        There was considerable uncertainty and misinformation about whether
    the Federal Government regulates date labels. 36% of the population
    wrongly answered that date labels are federally regulated, and 26% were
    unsure. Only 1% said they are federally regulated only for specific
    foods, which is technically the correct answer: the only food for which
    date labels are regulated federally is infant formula; all other foods
    are regulated at the state level or not at all, depending on the state.
    Those who were more likely to think that labels are federally regulated
    included younger consumers (18-34), African Americans, Hispanics,
    households of three or more, and households with children.
    36% of Consumers Think Date Labels Are Federally Regulated
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Consumers' willingness to throw away foods past the ``use by'' date
    depends on the food.

        Consumers were also asked about their frequency of discarding food
    based on the ``use by'' label. We found that they were most cautious
    about raw chicken, with 50% of all respondents ``always'' throwing away
    raw chicken past the ``use by'' date. Consumers were least cautious
    about unopened canned goods and breakfast cereal. But even for these
    less perishable foods, 12% and 9% of consumers still reported that they
    ``always'' throw away canned goods and breakfast cereal, respectively,
    past the ``use by'' date. For those foods most likely to cause concern,
    consumer perceptions of the ``use by'' label may translate into large
    amounts of food wasted: raw chicken, pasteurized milk, and deli meats
    were thrown away ``always'' or ``most of the time'' by 69%, 59%, and
    61% of consumers, respectively. Of those products, only deli meat has
    been shown to increase in risk after the date.\5\
        Younger consumers (18-34) were more likely to ``always'' discard
    foods past the ``use by'' date. This was true for all foods except raw
    chicken and prepared foods, for which rates of discarding past the date
    were uniformly high across age groups. Households with children were
    more likely than households with no children to discard multiple foods.
    Household income did not affect willingness to throw away food past the
    date, by and large, but the lowest income category (less than $35k/
    year) was more likely to ``never'' discard raw chicken and deli meats--
    more expensive items--past the ``use by'' date.
    How often do consumers report discarding foods that have passed the
            ``use by'' date?
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Conclusion
        This survey aimed to understand the extent to which consumers are
    confused about date labels, learn about their perceptions regarding
    whether labels are federally regulated, and identify which labels most
    clearly communicate quality versus safety. This report confirms
    previous findings that consumers are confused by date labels. As a
    result, they unnecessarily discard food with a high frequency, which
    can be a significant contributor to the wasted food problem in the
    United States. In addition, as millenials were more likely to view date
    labels as indicators of food safety, more likely to think date labels
    are federally regulated, and more likely to discard food past the date
    on the label, survey findings show that work is needed to ensure that
    food waste does not continue to increase with future generations of
    consumers. Survey results also identified those date labels that most
    clearly communicate safety versus quality, which can be helpful as
    industry, nonprofit organizations, and policymakers examine options to
    improve consumer awareness by standardizing date labels across the food
    supply.
        Survey results indicate that standardizing date labels and
    increasing consumer education on the meaning of date labels can help to
    reduce the significant amount of food that consumers unnecessarily
    discard. Consumers discarding less food can help meet the U.S.'s
    national food waste reduction goal to halve the country's level of food
    waste by 2030, and it can decrease the amount of precious resources
    that are wasted producing food that unnecessarily ends up in the
    landfill instead of on consumer's plates.
    References
        1. Hall K.D., Guo J., Dore M., Chow C.C. The progressive increase
    of food waste in America and its environmental impact. PloS One. 2009
    Nov. 25;4(11): e7940.
        2. ReFED. A Roadmap to reduce consumer food waste by 20 percent.
    2016. www.refed.com.
        3. Harvard Food Law and Policy Clinic and National Resources
    Defense Council. The Dating Game: How confusing date labels lead to
    food waste in America. 2013. http://www.chlpi.org/wp-content/uploads/
    2013/12/dating-game-report.pdf.
        4. Waste & Resources Action Programme. Consumer insight: date
    labels and storage guidance. 2011. http://www.wrap.org.uk/content/
    consumer-insight-date-labels-and-storage-guidance.
        5. United States Department of Agriculture. Quantitative Assessment
    of Relative Risk to Public Health from Foodborne Listeria monocytogenes
    Among Selected Categories of Ready-to-Eat Foods. 2003. http://
    www.fda.gov/downloads/Food/FoodScienceResearch/UCM197330.pdf.
                                  Attachment 2
    The Dating Game: How Confusing Food Date Labels Lead to Food Waste in
            America
    September 2013
    Report R:13-09-A
    NRDC
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Authors
        This report was produced in partnership between the Harvard Food
    Law and Policy Clinic and the Natural Resources Defense Council.
        The lead author of this report is Emily Broad Leib, Director of the
    Harvard Law School Food Law and Policy Clinic (a division of the Center
    for Health Law and Policy Innovation), with input, editing, and
    production support from Dana Gunders at the Natural Resources Defense
    Council.
        Additional coauthors include: Juliana Ferro, Annika Nielsen, Grace
    Nosek, and Jason Qu.
        Portions of this report are based on previous research and writing
    by Jacqueline Pierluisi, Lauren Sidner, and Nathan Rosenberg, students
    in the Harvard Food Law and Policy Clinic, with research assistance
    from Harvard Food Law Society members Amanda Ravich, Elizabeth Rosen,
    Erin Schwartz, Jane Wang Williams, and Margaret Wilson.
    Acknowledgements
        This report would not have been possible without the assistance and
    cooperation of Mitzi Baum, Kendra Bird, Jean Buzby, Erin Daly, Dr.
    Angela Fraser, Dr. Elise Golan, Wayne Melichar, Dr. Elliot Ryser, Alex
    Schmitt, and Jean Schwab.
        We'd also like to thank the following people for reviewing this
    report. Reviewers do not necessarily concur with the paper's
    recommendations but have advised on portions of its content.

        Jose Alvarez, Senior Lecturer, Harvard Business School; former CEO,
        Stop & Shop/Giant Landover
        Jonathan Bloom, Author of American Wasteland
        Sarah Klein, Senior Staff Attorney, Food Safety Program Center for
        Science in the Public Interest
        Dr. Theodore Labuza, Professor of Food Science and Engineering,
        Univ. of Minnesota
        Dr. Roni Neff, Program Director, Food System Sustainability and
        Public Health, Johns Hopkins Center for a Livable Future
        Doug Rauch, Founder, Daily Table; former President, Trader Joe's
    About the Harvard Law School Food Law and Policy Clinic
        The Harvard Food Law and Policy Clinic, a division of the Center
    for Health Law and Policy Innovation, is an experiential teaching
    program of Harvard Law School that links law students with
    opportunities to serve clients and communities grappling with various
    food law and policy issues. The Clinic strives to increase access to
    healthy foods, prevent diet-related diseases, and assist small and
    sustainable farmers and producers in participating in local food
    markets. For more information, visit http://blogs.law.harvard.edu/
    foodpolicyinitiative/ or follow on Twitter @HarvardFLPC.
    About NRDC
        The Natural Resources Defense Council (NRDC) is an international
    nonprofit environmental organization with more than 1.3 million members
    and online activists. Since 1970, NRDC's lawyers, scientists, and other
    environmental specialists have worked to protect the world's natural
    resources, public health, and the environment. NRDC has offices in New
    York City, Washington, D.C., Los Angeles, San Francisco, Chicago,
    Montana, and Beijing. Visit them at www.nrdc.org and follow them on
    Twitter @NRDC.
    Table of Contents
        Executive Summary
        Introduction
        Chapter 1: History of U.S. Date Labeling: A Piecemeal Response to
    Consumer Interest in Date Labels
        Chapter 2: The Current Regulatory Regime

            Federal Law
            Federal Voluntary Guidance
            State Law
            Local Regulations
            The Role of Industry

        Chapter 3: Shortcomings of the Current System

            Inconsistent and Unreliable Wording and Methods of
            Determination
            Consumer Confusion and Misinterpretation of Link to Food Safety
            Consumer Food Waste
            Economic Losses and Inefficiencies for Manufacturers,
            Distributors, and Retailers
            Challenges for Food Recovery Initiatives and Anti-Hunger
            Organizations

        Chapter 4: Recommendations

            Standardize and Clarify the Food Date Labeling System Across
            the United States
            The Role of Industry, Government, and Consumers

        Appendix A: Congressional Delegation of Food Labeling Authority to
    Agencies
        Appendix B: State Requirements in Brief; Supporting Charts for
    Figures 2 and 3
        Appendix C: State Date Labeling Regulations in Full
        Endnotes
    Executive Summary
        The waste of edible food by consumers, retailers, and manufacturers
    poses a significant burden to the American food system. Wasted food
    costs consumers and industry money; squanders important natural
    resources that are used to grow, process, distribute, and store
    America's food supply; and represents a missed opportunity to feed the
    millions of food-insecure households in the United States that are
    struggling to access healthy, affordable food. Misinterpretation of the
    date labels on foods is a key factor leading to this waste.
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Photo: www.foodwa stemovie.com.

        Improving date labeling policies and practices can decrease
    consumer confusion, which will not only reduce food waste, but also
    improve food safety. Date labels on food come in a dizzying variety of
    forms including ``use by,'' ``best before,'' ``sell by,'' and ``enjoy
    by'' dates, yet these simple markers are both poorly understood and
    surprisingly under-regulated, such that their meanings and timeframes
    are generally not defined in law. Because regulators, industry players,
    and citizens have become accustomed to seeing date labels on many food
    products over time, policymakers have not asked important questions
    about the date labeling system, and there has been a dearth of rigorous
    policy analyses of how these labels affect consumers' choices
    surrounding purchasing and discarding food products.
        This policy brief examines the historical impetus for placing dates
    on food--namely a desire to indicate products' freshness--and the ways
    in which the system has failed to meet this goal, while creating a
    range of ancillary problems. Relevant Federal laws and authorities are
    described along with a review of the legislative history on this topic,
    and a comparison of state laws related to food date labeling is
    provided. The paper then describes why and how date labels contribute
    to the waste of edible food in the United States and explains
    specifically how:

       The lack of binding Federal standards, and the resultant
            state and local variability in date labeling rules, has led to
            a proliferation of diverse and inconsistent date labeling
            practices in the food industry. Such inconsistency exists on
            multiple levels, including whether manufacturers affix a date
            label in the first place, how they choose which label phrase to
            apply, varying meanings for the same phrase, and the wide range
            of methods by which the date on a product is determined. The
            result is that consumers cannot rely on the dates on food to
            consistently have the same meaning.

       This convoluted system is not achieving what date labeling
            was historically designed to do--provide indicators of
            freshness. Rather, it creates confusion and leads many
            consumers to believe, mistakenly, that date labels are signals
            of a food's microbial safety, which unduly downplays the
            importance of more pertinent food safety indicators.

       This confusion also leads to considerable amounts of
            avoidable food waste as the mistaken belief that past-date
            foods are categorically unsuitable for consumption causes
            consumers to discard food prematurely.

       Inconsistent date labeling policies and practices harm the
            interests of manufacturers and retailers by creating increased
            compliance burdens and food waste at the manufacturer/retail
            level.

       Date labeling practices hinder food recovery and
            redistribution efforts by making the handling of past-date
            foods administratively and legally complex.

        After analyzing these five core problems with the contemporary date
    labeling regime, this report will introduce recommendations on how to
    begin to remedy the food waste and food safety issues related to date
    labeling, by creating a system in which date labels more clearly
    communicate information. Recommendations are broken into two sections:
    the first section proposes key changes to the date labeling system
    across the United States, and the second section identifies relevant
    stakeholders and describes actions that each should take to address the
    issue.
        In brief, the recommendations are as follows:
    I. Standardize and Clarify the Food Date Labeling System Across the
            United States
      1.  Make ``sell by'' dates invisible to the consumer: ``Sell by''
                dates generate confusion and offer consumers no useful
                guidance once they have brought their purchases home.
                Therefore, ``sell by'' and other date labels that are used
                for stock control by retailers should be made invisible to
                consumers. Products should only display dates that are
                intended to communicate to the consumer.

      2.  Establish a reliable, coherent, and uniform consumer-facing
                dating system: The following five recommendations on how to
                standardize and clarify date labels will help establish a
                more effective system of consumer-facing dates that
                consumers can understand and trust. The system should be
                consistent across products to the extent it makes sense.

           Establish standard, clear language for both quality-
                based and safe-
                  ty-based date labels: The language used before dates on
                food products
                  should be clarified and standardized to better inform
                consumers of the
                  meaning of different dates. The words used should (1) be
                uniform for a par-
                  ticular meaning across the country and across products;
                (2) be unambiguous
                  in the information they convey; and (3) clearly delineate
                between safety-
                  based and quality-based dates.

           Include ``freeze by'' dates and freezing information
                where applica-
                  ble: Promote the use of ``freeze by'' dates on perishable
                food products to
                  help raise consumer awareness of the benefits of freezing
                foods and the
                  abundance of food products that can be successfully
                frozen in order to ex-
                  tend shelf life.

           Remove or replace quality-based dates on
                nonperishable, shelf-sta-
                  ble products: Removing ``best before'' or other quality
                dates from shelf-sta-
                  ble, nonperishable foods for which safety is not a
                concern would reduce
                  waste of these products and increase the weight given to
                labels placed on
                  products that do have safety concerns. Some type of date
                may still be use-
                  ful, such as an indication of shelf life after opening
                (e.g., ``Best within XX
                  days of opening'') or the date on which the product was
                packed (e.g., ``Max-
                  imum quality XX months/years after pack date'')

           Ensure date labels are clearly and predictably
                located on packages:
                  Consumers should be able to easily locate and understand
                date labeling in-
                  formation on packages, perhaps through the use of a
                standard ``safe han-
                  dling'' information box, akin to the Nutrition Facts
                panel.
                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

           Employ more transparent methods for selecting dates:
                Create a set
                  of best practices that manufacturers and retailers can
                use to determine
                  date labels for products, and consumers can learn about
                if interested.

      3.  Increase the use of safe handling instructions and ``smart
                labels'': Provide clear, pertinent food safety information
                alongside date labels. This could include additional
                phrases, QR codes that allow consumers to scan for more
                information, or ``smart labels'' like time-temperature
                indicators.
    II. The Role of Industry, Government and Consumers
        Collaboration amongst different stakeholders and entities is
    necessary to standardize and clarify the current date labeling regime.
    Each stakeholder has a role to play to improve the system. Three groups
    of stakeholders have been identified; solutions targeted at each group
    include:

      1.  Food Industry Actors: Industry actors can take meaningful steps
                to reduce date label confusion, reduce food waste, and
                improve consumer safety by:

           Converting to a system which adopts the recommended
                changes above:
                  making ``sell by'' information invisible to consumers;
                establishing a stand-
                  ardized, easily understandable consumer-facing dating
                system; and pro-
                  viding more safe handling information;

           selling or donating near-expiration or expired
                products; and

           educating consumers on the meaning of date labels
                and on safe food han-
                  dling.

      2.  Government: Congress, Federal administrative agencies, state
                legislatures, and state agencies should work towards a
                system of date labeling that is more standardized, more
                easily understood by consumers, and less arbitrary. The
                Federal Food and Drug Administration and U.S. Department of
                Agriculture have existing authority to regulate misleading
                labels, and should use this authority to reduce confusion
                around date labeling. Otherwise, Congress can act to create
                overarching Federal legislation. Regardless of whether a
                Federal law is passed, existing Federal guidance should be
                strengthened and streamlined so that states following such
                guidance will begin to implement more similar state laws
                and regulations.

      3.  Consumers and Consumer-Facing Agencies and Organizations:
                Increased consumer education--covering everything from the
                meaning of date labels, to the importance of proper
                refrigeration temperature, to strategies on how to
                determine whether food is safe and wholesome to eat--will
                be crucial regardless of whether policymakers decide to
                implement changes to the current date labeling regime or to
                maintain the status quo. Federal, state, and local agencies
                and organizations can conduct consumer outreach and
                education to build awareness of proper food safety,
                handling, and storage, as well as the high rates of food
                waste due to date label confusion and the detrimental
                effects of such waste. Consumers can act now by educating
                themselves as well.

        Revising the convoluted and ineffective system of date labels is
    one of the most straightforward ways we can address the rising rates
    wasted food, while providing a service to consumers by improving both
    food safety outcomes and economic impacts.
    Introduction
        America is fixated on food--we have television channels devoted to
    it, competitions revolving around it, and every manner of book, blog,
    and newspaper column revering it. For a country so obsessed with food,
    it is alarming how much of it Americans throw away, despite the serious
    ethical, environmental, and financial implications of this waste. An
    estimated 40 percent of food in the United States goes uneaten,\1\ and
    according to even the most conservative estimates, Americans waste 160
    billion pounds of food each year.\2\ The rate of food loss in the
    United States far exceeds that of much of the rest of the world, with
    the average American consumer wasting ten times as much as food as the
    average consumer in Southeast Asia.\3\ One key contributor to wasting
    food is confusion around food expiration dates.
        Despite the high rate of food waste, almost 15 percent of U.S.
    households were food-insecure at some point in 2011.\4\ It has been
    estimated that redistributing 30 percent of all the food lost in the
    United States could feed every food-insecure American their total
    diet.\5\
        Wasted food has serious environmental consequences as well.\6\ When
    food is wasted, all of the resources used to produce, store, transport,
    and handle that food--including arable land, labor, energy, water,
    chemicals, and oil--are also wasted.\7\ A study by McKinsey & Company
    projected that roughly 100 million acres of cropland could be saved if
    developed countries reduced consumer food waste by 30 percent.\8\ It is
    estimated that approximately 25 percent of America's freshwater use
    goes into the production of wasted food.\9\
        Compounding these environmental and ethical harms are the financial
    losses incurred by American families when enough food to fill the Rose
    Bowl is wasted each day in the United States.\10\ At the consumer
    level, according to one calculation, food waste costs the average
    American family of four $1,365-$2,275 per year.\11\
        Those studying the problem of food waste in the United States and
    abroad have identified confusion over food date labeling as a major
    contributing factor at both the industry and the consumer level.\12\
    Research from the United Kingdom support a connection between the
    misinterpretation of date labels and wasted food,\13\ and a study
    conducted by the Bio Intelligence Service for the European Commission
    identified the standardization of food date labeling as an important
    policy intervention to reduce food waste.\14\
        This policy brief explores the relationship between food waste,
    food safety, and the regulatory systems that govern, or fail to govern,
    food date labeling practices in the United States. It will describe how
    the contemporary date labeling regime creates confusion among
    consumers, obstacles for food service providers, and inefficiencies in
    the food industry, ultimately contributing to and exacerbating the
    waste of edible food in this country.
        The brief will begin by tracing the history of food date labeling
    in the United States and then proceed to analyze the current labeling
    landscape at the Federal, state, local, and industry levels. Drawing on
    the results of a comprehensive literature review, a 50 state study of
    current date labeling regulations, and data from interviews with
    experts in government, industry, and food science, this paper will
    outline key problems with the contemporary date labeling regime: its
    disorienting effects on consumers, its failure to convey important food
    safety information (despite the appearance of doing so), its negative
    economic impacts across the food sector, and its hindrance of food
    recovery initiatives. All of these factors lead directly to food waste
    in American homes and across the supply chain, throughout production,
    distribution, retail, food service, and home consumption.
        Based on this analysis, the brief will conclude by outlining
    recommendations for how different stakeholders can take action to
    improve current practices and foster policy changes to begin to remedy
    the negative impacts of date labeling on food waste in the United
    States.
    Chapter 1: History of U.S. Date Labeling: A Piecemeal Response To
            Consumer Interest in Date Labels
        The urbanization of the United States divorced most consumers from
    the creation of their food--these consumers began purchasing the bulk
    of their food, rather than growing it themselves, and had little
    personal knowledge concerning the freshness and shelf life of their
    purchases.\15\ As Americans began to buy more processed or packaged
    foods, this knowledge deficit forced consumers to rely on assurances
    from retailers that the foods they were purchasing were fresh, yet
    these assurances often proved insufficient to fully dispel consumer
    fears.\16\
        By the 1970's, consumer concern surrounding the freshness of food
    crystallized,\17\ and diverse stakeholders within the food industry,
    government, and public interest sector began to seriously explore what
    is known as open dating in response to consumer unease. Open dating
    uses a date label that includes a month, day, and year in a format
    clearly evident to the consumer.\18\ Out of a nationwide survey of
    250,000 shoppers published in 1975, 89 percent of respondents favored
    this kind of dating system.\19\ According to another survey, 95 percent
    of respondents listed open dating as the ``most useful'' consumer
    service for addressing product freshness concerns.\20\ ``Open'' dating
    differed from the long-established industry practice of ``closed''
    dating, in which manufacturers and retailers used symbols or numerical
    codes that were undecipherable to consumers to manage their inventory
    and stock rotation,\21\ without any intention of relaying that
    information directly to consumers.\22\ Throughout the 1970s, many
    supermarkets voluntarily adopted open dating systems in response to
    mounting consumer interest.\23\
        Government actors also began to react to rising consumer demand for
    more objective, accessible indicators of product freshness and quality
    during this period. By 1973, ten state governments had adopted laws or
    regulations mandating open dating for certain classes of food
    products.\24\ The Federal Government also began increasing its
    engagement with the issue of date labeling by supporting research on
    this topic. In 1975, the General Accounting Office (now the Government
    Accountability Office or GAO) issued a report to Congress focusing on
    ``problems with stale or spoiled foods'' and advocating a uniform date
    labeling system to address consumer concerns.\25\ In 1979, the Office
    of Technology Assessment (OTA), which existed as an office of the U.S.
    Congress from 1972 to 1995, was assisted by a task force of consumer
    representatives, retailers, processors, wholesalers, scientific
    experts, and government officials in publishing a comprehensive report
    for the Senate on open dating to address ``[consumer] concern over the
    freshness of food.'' \26\ Critically, even in the 1970s supporters of
    open dating recognized that assuring the microbiological safety of food
    could not be achieved using date labels.\27\ Indeed, the OTA report
    flatly stated that ``there is little or no benefit derived from open
    dating in terms of improved microbiological safety.'' \28\ An analysis
    of the intersection between date labels and food safety will be
    discussed at length in the sections below.
        Food labeling received the concerted attention of Congress during
    this time period, yet legislation on date labeling ultimately was not
    passed.\29\ Congressional action could have regulated date labels
    across the country in a predictable, empirically-grounded way and would
    have standardized industry practices and preempted widespread variation
    in state regulations. Members of Congress recognized these benefits,
    and during the 1970s and 1980s introduced several legislative proposals
    to institute a uniform open code dating system on a nationwide scale,
    mostly via amendments to the Federal Food, Drug, and Cosmetic Act.\30\
    At least ten bills were introduced by the 93rd Congress (1973-1975)
    alone.\31\ The 1975 GAO report encouraged Congress to adopt one of
    these proposed amendments.\32\ The Food and Drug Administration (FDA)
    also welcomed the potential for an explicit statutory mandate over date
    labeling, even while maintaining that it already had authority to
    regulate date labeling under its existing powers to control
    adulteration and misbranding.\33\ However, none of the Federal
    legislative efforts gained enough momentum to pass into law and create
    a uniform, nationwide system.\34\
        A variety of stakeholders shaped the debate about open dating
    legislation. In addition to the role consumers played in demanding more
    information about their products, various food industry actors also
    played a role. At first, supermarket chains opposed such regulation
    because they believed that ``open dating would add to the price of the
    food, since shoppers would pick over the packages on the supermarket
    shelves, selecting only the newest,'' \35\ causing increased losses of
    outdated, but edible food, and thus forcing supermarkets to raise
    prices in order to account for the discarded products.\36\ However,
    after this initial opposition, supermarkets began to use open dates
    voluntarily in response to consumer demand, and even advertised the new
    practice as a promotional strategy to attract customers.\37\ Then, when
    Congress tried to pass legislation that would regulate open dating,
    spokespersons from the National Association of Food Chains argued
    before Congress that the industry was already voluntarily spending
    millions of dollars on food labeling and that the additional Federal
    requirements would simply impose higher costs and ``deter [members of
    the food chains] from adopting further voluntary, progressive programs
    in the future.'' \38\
        Policymakers were also discouraged from coming up with a standard
    Federal model because of the difficulties of trying to harmonize the
    ``differences in views on type of date, explanation of date, and foods
    covered.'' \39\ Further, food lawyers--even those advocating for a
    uniform date labeling system--questioned whether Congress was ``willing
    to pass a strong preemption provision'' that would invalidate all state
    laws, and thus successfully achieve a uniform national date labeling
    regime consistently applied in all states.\40\
        Due to the lack of success of open dating legislation, the 1970s
    saw the uneven and piecemeal creation of an American date labeling
    regime, as state governments and industry actors responded to
    consumers' interest in fresh, unspoiled food in a range of ways, but
    with no unifying strategy at the Federal level.\41\ The resulting
    inconsistencies across state and local laws quickly began to create
    consumer confusion \42\ and industry distress \43\ which did not go
    unnoticed, even by early observers. Food lawyers recognized that the
    proliferation of inconsistent state laws could affect interstate
    commerce, and hinted at the idea that it could inflate the price of
    food, reiterating the initial concern raised by supermarket chains that
    open labeling would lead to food waste and higher food prices.\44\ For
    example, costs would go up if food companies needed to use separate
    packaging lines for products entering each jurisdiction in order to
    comply with divergent state laws.\45\
        Streamlining open dating laws across the nation, so that the food
    industry could adapt to a single legal regime instead of trying to
    comply with the proliferation of inconsistent state laws, provided then
    and continues to provide a strong rationale for Congress to pass
    legislation that can improve productivity and efficiency in the food
    industry. This would also ensure that consumers are provided consistent
    and coherent messages from the dates they are seeing.\46\ The GAO
    concluded its discussion of open code dating in 1975 by warning that
    failure to implement a national system would ``add to confusion,
    because as open dating is used on more products, it would continue
    letting each manufacturer, retailer, or state choose its own dating
    system.'' \47\ Nevertheless, no Federal legislation has been passed for
    more than 40 years and this lack of uniformity persists today, leading
    to wasteful food practices within the American food system.
        After a more than 2 decade lapse in Federal consideration of these
    issues, the next move towards a Federal date labeling requirement
    occurred in the late 1990s. In 1999, Congressman Frank Pallone (D-NJ)
    introduced the National Uniform Food Safety Labeling Act of 1999, which
    would have required food to bear a date after which the food should no
    longer be sold ``because of diminution of quality, nutrient
    availability, or safety,'' preceded by the words ``use by.'' \48\ The
    bill was stalled at the House Energy and Commerce Committee and did not
    pass.
        Similarly, in 1999, Congresswoman Nita Lowey (D-NY) introduced the
    Food Freshness Disclosure Act and reintroduced similar bills in 2001,
    2003, 2005, 2007, and 2009.\49\ All the bills were referred to the
    House Energy and Commerce Committee, but none passed out of Committee.
    The bills proposed to amend the Food, Drug, and Cosmetic Act by adding
    the requirement of applying uniform freshness dates on food. Uniformity
    would be achieved by requiring that all freshness dates be preceded by
    the phrase ``best if used by.'' \50\ Foods identified under 21 CFR
    101.9(j) as exempt from the nutritional labeling requirements of the
    Nutritional Labeling and Education Act (including food products served
    at restaurants or schools, raw fruits and vegetables, and certain
    ready-to-eat foods, such as foods sold at bakeries) would also be
    exempt from this legislation.\51\ The bill would require the
    ``manufacturer, packer, or distributor of the food'' to select the
    freshness date based on tests that demonstrate that when consumed, the
    nutrient quality of the food would still be the same as indicated by
    the nutrition facts panel.\53\ If passed into law, this legislation
    would be a positive step towards achieving a uniform Federal date
    labeling system, but it could be strengthened in several ways, as
    detailed by the recommendations included in this report. For example,
    the new regulation could require affixing a safety-based date with a
    different standardized term such as ``safe if used by'' on products
    that are empirically proven to cause food safety risks rather than
    requiring a ``best if used by'' date on all food products.
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    Chapter 2: The Current Regulatory Regime
        To understand how the food date labeling system contributes to
    America's food waste problem, it is essential to review the different
    legislative and regulatory systems that currently govern date labeling.
    As discussed above, despite occasional Federal interest, no legislation
    has been passed, and thus Federal law generally does not require or
    regulate the use of date labels.\54\ This lack of coordinated action at
    the Federal level increases the complexity of the food labeling regime
    by causing a regulatory void that states and localities have attempted
    to fill in various ways, resulting in a tremendously varied set of
    state and local laws regarding the use of date labels. Industry has
    also attempted to provide direction, with some food trade associations
    that don't necessarily help to improve public health creating voluntary
    guidance on date labeling practices for specific commodities. Because
    none of these approaches are comprehensive, individual manufacturers
    and retailers are often left to decide how date labels are actually
    implemented.\55\
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        The lack of formal definitions or standardization across date
    labeling policies and practices is a problem because it gives
    unreliable signals to consumers. Such inconsistency exists on multiple
    levels, including whether manufacturers affix a date label in the first
    place, how they choose which label category to apply, internal
    inconsistency within each label category due to the lack of formal
    legal definitions, and variability surrounding how the date used on a
    product is determined. The result is that consumers cannot rely on the
    dates on food to consistently have the same meaning.
        This section analyzes the ways in which these regulatory and
    industry forces operate and interact with each other. Ironically,
    despite the original intention of increasing consumer knowledge about
    their food, date labeling has become a largely incoherent signaling
    device for consumers. Instead of offering the type of clear and
    unambiguous information that consumers seek, date labels can and do
    confuse and mislead them.
    Federal Law
        The scope of Federal laws governing food labeling is broad, but
    does not currently address date labeling with any specificity or
    consistency. Congress clearly has the power to regulate date labels
    under the Commerce Clause in the U.S. Constitution, which gives
    Congress power to regulate products sold in interstate commerce.\56\
    Using this power, Congress has passed a number of Federal statutes that
    govern labeling of different types of food, with two agencies having
    the clearest delegation from Congress of authority over food labeling:
    FDA and the U.S. Department of Agriculture (USDA). However, as
    described in the previous section, because Congress has not
    successfully passed national date labeling legislation to date, no
    agencies have been given explicit authority to regulate in this realm.
    The statutes and the provisions that are most relevant to food labeling
    are discussed below, with excerpts of language from each Federal law
    included in Appendix A.
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                Congress clearly has the power to regulate date labels
            under the Commerce Clause in the U.S. Constitution, which gives
            Congress power to regulate products sold in interstate
            commerce.
    Agency Authority to Regulate
        Food Labeling and Existing Laws Congress has never mandated that
    FDA or USDA implement a national date labeling regime; \57\ however, it
    has delegated general authority to both agencies to ensure food safety
    and protect consumers from deceptive or misleading food package
    information.\58\ Both FDA and USDA have the power to regulate food
    labeling for the foods that fall under their respective purviews. FDA
    has statutory authority to regulate the safety of all foods with the
    exception of meat, poultry, and some fish, under the Food, Drug, and
    Cosmetic Act of 1938, the Nutritional Labeling and Education Act of
    1990, the Fair Packaging and Labeling Act of 1966, the Infant Formula
    Act of 1980, and the Food Safety Modernization Act of 2011.\59\ On the
    other hand, USDA has jurisdiction to regulate meat, poultry, and
    certain egg products, under the Poultry Products Inspection Act of
    1957, the Federal Meat Inspection Act of 1906, the Egg Products
    Inspection Act of 1970, the Perishable Agricultural Commodities Act of
    1930, and the Agricultural Marketing Act of 1946.\60\ FDA and USDA
    share jurisdiction over certain products including eggs \61\ and fruits
    and vegetables.\62\
        FDA receives broad food labeling authority under several of the
    Acts mentioned above, with its powers to regulate misbranded foods and
    misleading labels under the Food, Drug, and Cosmetic Act being the most
    robust.\63\ Since one of the purposes of the Food, Drug, and Cosmetic
    Act is to protect the interest of consumers, the Act prohibits the
    ``adulteration or misbranding of any food.'' \64\ Food under FDA's
    jurisdiction may be considered misbranded if the food's label is false
    or misleading ``in any particular.'' \65\ USDA also has the power to
    regulate misleading labels for all products under its purview, and has
    vested the Food Safety and Inspection Service (FSIS), an enforcement
    agency within USDA, with this authority.\66\ Under the Acts mentioned
    above, USDA has broad authority to promulgate regulations to protect
    consumers and ensure that products specifically regulated under each
    Act are not misbranded.\67\ Similar to the Food, Drug, and Cosmetic
    Act, under the provisions of these statutes, labels are considered
    misbranded if they are false or misleading ``in any particular.'' \68\
    As explained throughout the report, the current date label system leads
    to consumer confusion and the waste of edible food.
        If FDA and/or USDA agree that date labels are ``misleading,'' they
    could make a case that their existing authority should be interpreted
    to allow them to regulate date labeling as a form of misbranding of
    food items, without any additional action on the part of Congress.
        Importantly, these laws also require that FDA and USDA work
    together in promulgating consistent regulations. For example, under
    both the Poultry Products Inspection Act and the Federal Meat
    Inspection Act, USDA must prescribe regulations for labels that are
    consistent with the Food, Drug, and Cosmetic Act labeling
    standards.\69\ Further, the Egg Products Inspection Act provides that
    the two agencies must cooperate with one another in order to decrease
    the burden on interstate commerce in labeling of eggs, because packages
    that are not properly labeled could ``be sold at lower prices and
    compete unfairly with the wholesome, not adulterated, and properly
    labeled and packaged products.'' \70\ In the past, FDA and USDA have
    issued joint notices about the regulation of eggs, specifically
    requesting comments on whether the varying practices for placing
    expiration dates on egg products would violate the misbranding
    provisions of the Food, Drug, and Cosmetic Act and ``be misleading to
    consumers given their expectations.'' \71\ These are some examples of
    how the two agencies interact with each other and share responsibility
    to ensure consistency across their respective regulations. FDA and USDA
    should similarly work together to promulgate regulations that address
    the misleading impact of date labels by ensuring that date labels are
    standardized across food products.
        Other government agencies also share the role of protecting the
    interest of consumers from deceptive practices. In particular, the
    Federal Trade Commission (FTC) has food labeling authority under the
    Federal Trade Commission Act of 1914 if action is needed to prevent
    ``unfair methods of competition'' or ``unfair or deceptive acts or
    practices in or affecting commerce.'' \72\ Further, FDA and FTC have
    joint authority under the Fair Packaging and Labeling Act to create
    regulations ``necessary to prevent the deception of consumers'' for any
    consumer commodities, including food.\73\ In response to their shared
    authority under Fair Packaging and Labeling Act, FDA and FTC created a
    memorandum of understanding that gives FDA the authority to regulate
    food labeling and FTC the authority to regulate food advertising in
    order to prevent misleading information from reaching the consumer.\74\

              If FDA and/or USDA agree that date labels are ``misleading,''
            they could make a case that their existing authority should be
            interpreted to allow them to regulate date labeling as a form
            of misbranding of food items, without any additional action on
            the part of Congress.

        Similar to any coordinated response by FDA and USDA, the shared
    responsibility already utilized by FDA and FTC could be a model for a
    joint response to date labeling regulation, showcasing a way for
    agencies to work together to streamline date labeling practices across
    different foods.
        Figure 1 below includes an illustration of the Federal agencies and
    Acts that govern food labeling.
    Figure 1: Congressional and Agency Authority in the Federal Food
            Labeling System **
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              * Acts which give authority pertaining to date labeling on
            foods.
              ** Note that FDA may have additional enforcement authority
            shared with other agencies with regard to food safety, but this
            chart focuses on primary authority over labeling for certain
            food types.
    The Current Federal Labeling Regime--How FDA and USDA Use Their Legal
            Authority
        While FDA could interpret its existing statutory authority to
    enable it to regulate date labeling practices for the foods under its
    purview,\75\ the agency has not done so. According to FDA, it ``does
    not require food firms to place `expired by', `use by' or `best before'
    dates on food products''; instead, ``this information is entirely at
    the discretion of the manufacturer.'' 76 The only exception is infant
    formula, which is subject to explicit FDA date labeling
    requirements.\77\ In response to scandals resulting from recalls of
    infant formula products that were causing illnesses among children
    because the products lacked sufficient nutrients,\78\ and due to
    findings that industry had too much discretion to decide the
    appropriate nutritional content of these products,\79\ Congress passed
    the Infant Formula Act of 1980, mandating that FDA set uniform
    standards for the nutritional content of these products.\80\ However,
    unlike the arguments around freshness discussed in the History Section,
    the Infant Formula Act focused only on the nutritional content of
    infant formula products. Under this Act, FDA established a range of
    regulations impacting infant formula, including a requirement that its
    labels include ``use by'' dates.\81\ The regulations mandate that
    determinations used to assign such dates to infant formula must be
    based on tests that prove the concentration of nutrients is adequate
    for the health of children up to the marked date.\82\
        When compared to FDA, USDA more explicitly addresses date labeling
    for food products under its authority. With a few exceptions, such as
    requiring a ``pack date'' for poultry products \83\ and a lot number or
    ``pack date'' for egg products certified by USDA,\84\ USDA also does
    not generally require date labels on regulated products.\85\ However,
    the agency does have technical requirements addressing how dates should
    be displayed on USDA-regulated food products if they are employed
    voluntarily or according to state law. Under these rules, a calendar
    date ``may'' be applied to USDA-regulated products so long as it
    includes a day and a month, and possibly a year in the case of frozen
    or shelf-stable products.\86\ USDA also requires calendar dates to be
    preceded by ``a phrase explaining the meaning of such date, in terms of
    `packing' date, `sell by' date, or `use before' date,'' and notes that
    such dates can be implemented ``with or without a further qualifying
    phrase, e.g., `For Maximum Freshness' or `For Best Quality,' and such
    phrases shall be approved by the Administrator [pursuant to procedures
    outlined in 9 CFR  317.4].'' \87\ This latter rule is arguably the
    most robust Federal regulation that exists, but it is limited in three
    respects: (1) it applies only to USDA-regulated foods (poultry, meat,
    certain egg products); (2) the three explanatory phrases that are
    allowed (``packing,'' ``sell by,'' and ``use before'') are undefined by
    the regulation and are allowed to be used interchangeably, which
    highlights their lack of meaning and inability to communicate
    significance to consumers; and (3) the rule makes the use of ``further
    qualifying phrases,'' which could help correct ambiguity, totally
    optional.
    Federal Voluntary Guidance
        Instead of actively regulating date labeling practices in a uniform
    manner, the Federal Government has provided mostly voluntary guidance
    on this subject. One example of voluntary guidance is the ``Uniform
    Open Dating Regulation,'' \88\ a product of the National Institute of
    Standards and Technology (NIST), a research and advisory body within
    the U.S. Department of Commerce, in partnership with the National
    Conference on Weights and Measures (NCWM), a not-for-profit corporation
    committed to creating uniform national standards for various units of
    measurement.\89\ Recognizing that the ``lack of uniformity between
    jurisdictions could impede the orderly flow of commerce,'' \90\ the
    NCWM has promulgated model regulations on open dating which they hope
    will be adopted by all state and local jurisdictions.\91\ NCWM's model
    regulations, which are published in NIST Handbook 130,\92\ set ``sell
    by'' as the label date that jurisdictions should require for pre-
    packaged perishable foods and ``best if used by'' as the date that
    should be required for semi-perishable or long-shelf-life foods.\93\
    The model regulations allow all foods to be sold after their label
    dates, provided that they are of good quality and that perishable foods
    are clearly marked as being past-date.\94\ NIST Handbook 130 also
    includes guidance for properly calculating the label date \95\ and for
    expressing the date on packaging.\96\
        Thus far, according to the 2013 edition of NIST Handbook 130, five
    states (Arkansas, Connecticut, Nevada, Oklahoma, and West Virginia)
    have regulations in place that automatically adopt the most recent NCWM
    Uniform Open Dating Regulation published in NIST Handbook 130.\97\
    Three more states, (Michigan, South Dakota, and Washington) and the
    U.S. Virgin Islands have adopted an earlier version of NIST Handbook
    130 in whole or in part.\98\ In sum, while Federal guidance on the
    topic of date labels does exist, only a minority of states have
    implemented this voluntary guidance. Even though widespread adoption of
    the most current edition of the guidance would create uniformity and
    standardization across all states that adopt its open dating
    provisions, the guidance in NIST Handbook 130 has flaws. For example,
    as discussed in later sections, utilizing ``sell by'' dates increases
    confusion and food waste, and thus these dates are not as effective at
    communicating their significance to consumers. Suggestions on how date
    labeling guidance can be strengthened to effectively decrease consumer
    confusion, improve food safety, and reduce food waste will be discussed
    below in the Recommendations section of the report.
        Another example of Federal voluntary guidance is the FDA Food
    Code.\99\ The FDA Food Code is a reference document issued by FDA that
    provides model regulations for state and local governments on food
    safety laws.\100\ Like NIST Handbook 130, adoption of the code is
    voluntary. However, many states have chosen to adopt it because the FDA
    Food Code reflects the expertise of dozens of food safety experts.
    Importantly, the Code itself is not law; it only becomes binding when
    states adopt it by statute or regulation, and states typically add
    their own modifications. A new version of the FDA Food Code was
    published every 2 years until 2001 and is now published every 4 years,
    with the most recent version published in 2009.\101\

              In sum, while Federal guidance on the topic of date labels
            does exist, only a minority of states have implemented this
            voluntary guidance.

        The FDA Food Code addresses date labeling requirements in three
    different areas: shellfish; \102\ refrigerated, ready-to-eat
    potentially hazardous food; \103\ and reduced oxygen packaging.\104\
    For example, for shellfish, the FDA Food Code suggests a date labeling
    requirement for shellfish \105\ that has been adopted by many states.
    For refrigerated, ready-to-eat potentially hazardous foods ``prepared
    and held in a food establishment for more than 24 hours,'' the FDA Food
    Code requires that they ``be clearly marked to indicate the date or day
    by which the food shall be consumed on the premises, sold, or discarded
    based on [specified] temperature and time combinations.'' \106\ The FDA
    Food Code does provide some guidance, but it only applies date labeling
    language to a limited number of food items.\107\ As mentioned above,
    states adopt language of the FDA Food Code in their own legislation or
    regulations; for example 13 states have adopted almost the exact same
    language as the shellfish date labeling provision in the FDA Food
    Code.\108\
    State Law
        The Supremacy Clause of the Constitution provides that when state
    and Federal laws conflict, the conflicting state law will be
    invalidated.\109\ Thus, state statutes are not preempted by Federal law
    if they do not directly conflict with existing Federal
    legislation.\110\ Because Federal regulation of date labels is so
    limited, states consequently have vast discretion to regulate date
    labels in almost any way they see fit. Certain states have used that
    discretion enthusiastically, creating a system of stringent
    requirements for date labels, while others have not regulated date
    labels at all. The result is an inconsistent state regulatory scheme
    that is not necessarily improving public health. One possible reason
    for such wide variation is that depending on the state, date labels
    fall under the purview of different state government departments,
    including Department of Health, Department of Agriculture, Department
    of Weights and Measures, Department of Commerce, or others.\111\
        Furthermore, state law is not static; state legislatures are
    constantly updating and amending the date labeling requirements.
    Several states passed new date labeling laws within the past year. For
    example, Georgia amended its date labeling rules in 2012 by adding a
    definition for the term ``expiration date,'' (now defined as being
    ``synonymous with Pull Date, Best-By Date, Best Before Date, Use-By
    Date, and Sell-By Date,'' and meaning ``the last date on which the
    following FOOD products can be sold at retail or wholesale'') \112\ and
    preventing sale after the expiration date of prepackaged sandwiches,
    eggs, infant formula, shucked oysters, milk, and potentially hazardous
    food labeled as ``keep refrigerated.'' \113\

              Certain states have used that discretion enthusiastically,
            creating a system of stringent requirements for date labels,
            while others have not regulated date labels at all. The result
            is an inconsistent state regulatory scheme that is not
            necessarily improving public health.

        This section explores some of the patterns across state date label
    regulations that emerged from our 50 state research; it also highlights
    the extreme variations among these regulations to illuminate how our
    current food labeling system creates confusion for consumers and does
    not necessarily improve food safety. Although the most defining feature
    of the state-level regulation of date labels is its sheer
    variability,\114\ there are several discernible patterns among the
    regulations. States can be roughly grouped into four categories:

      1.  Those that regulate the presence of date labels on certain foods
                but do not regulate sales after those dates;

      2.  Those that do not regulate the presence of date labels but
                broadly regulate sales after such dates if date labels are
                voluntarily applied;

      3.  Those that regulate both the presence of date labels and,
                broadly, the sale of products after those dates; and

      4.  Those that do not require or regulate date labels at all.

    According to our 50 state research, 41 states plus the District of
    Columbia require date labels on at least some food items, whereas nine
    states do not require them on any foods (see Figure 2, below).\115\ For
    example, New York does not require date labels to be applied to any
    products, while all six of its neighboring states--New Jersey,
    Pennsylvania, Connecticut, Massachusetts, Vermont, and Rhode Island--
    have such requirements. Twenty states plus the District of Columbia
    also regulate the sale of food products after some label dates, while
    30 states have no such restrictions (see Figure 3, below).
    Massachusetts's regulations are an example of the kind of restrictions
    states can impose on sales after the label date. In Massachusetts,
    ``food can only be sold past its `sell by' or `best if used by' date
    if: (1) it is wholesome and its sensory physical qualities have not
    significantly diminished; (2) it is segregated from the food products
    which are not past date; and (3) it is clearly marked as being past
    date.'' \116\ As with this example, even when regulations exist around
    the use of date labels, very few states define what the words should
    mean and virtually none delineate the process for determining the dates
    (see Appendix C).
        States also differ in the kinds of food they require to bear date
    labels (see Figure 4, below) as well as the kind of date labels that
    are required. Most states that require date labels or regulate the sale
    of past-date products apply their regulations to specific foods, such
    as shellfish, dairy/milk, or eggs. A handful of states regulate
    perishable foods more generally.\117\ For example, Maryland requires
    only that Grade A milk bear a ``sell by'' date \118\ and does not
    require a date label on any other products; Minnesota, on the other
    hand, requires ``quality assurance'' dates on perishable foods \119\
    and eggs,\120\ and ``sell by'' dates on shellfish.\121\ The most common
    food product that requires date labeling is shellfish, for which such
    labeling is specifically regulated in 24 states and the District of
    Columbia. Further, as previously mentioned, eight states have adopted
    the NCWM Uniform Open Dating Regulation in whole or in part, meaning
    that those states are more similar to one another in terms of their
    regulations.\122\
    Figure 2: States Requiring Date Labels on At Least Some Food Products
            \127\
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Figure 3: States Regulating Food Sales Past Some Label Dates
            128-129
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                                         Figure 4: States Regulating Date Labeling \130\
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Potentially
               State            Perishable Foods   Hazardous Foods     Milk/Dairy       Meat/ Poultry       Shellfish           Eggs              Other
                                      \131\             \132\
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Alabama                                                     X                                   X
    Alaska                                                                                                            X
    Arizona                                                                                                                             X
    Arkansas                                                                                                          X
    California                                                                    X                                   X
    Colorado                                                                                                                            X
    Connecticut                                                                   X
    Delaware                                                                                                                            X
    Florida                                                                       X                                   X
    Georgia                                                     X                 X                                   X                 X                 X
    Hawaii                                                                        X                                   X
    Idaho
    Illinois                                                                                                                            X
    Indiana                                                                                                           X                 X
    Iowa                                                                                                                                X
    Kansas                                                                                                                              X
    Kentucky                                                                      X                                   X
    Louisiana                                                                                                                           X
    Maine                                                                                                             X
    Maryland                                                                      X
    Massachusetts                             X
    Michigan                                  X                                   X                 X
    Minnesota                                 X                                                                       X                 X
    Mississippi                                                                                                       X
    Missouri
    Montana                                                                       X
    Nebraska
    Nevada                                                      X                 X
    New Hampshire                                                                 X                                                                       X
    New Jersey                                                                    X                                   X
    New Mexico                                                                    X
    New York
    North Carolina                                                                                                    X
    North Dakota                                                                                                      X
    Ohio                                      X                                                                       X
    Oklahoma                                                                                                          X                 X
    Oregon                                    X
    Pennsylvania                                                                  X                                   X
    Rhode Island                                                                                                      X                                   X
    South Carolina                                                                                                    X                 X
    South Dakota
    Tennessee
    Texas                                                                                                             X
    Utah
    Vermont                                                                                                           X
    Virginia                                                                      X                                   X
    Washington                                X
    Washington, D.C.                          X                 X                 X                 X                 X                 X                 X
    West Virginia                                                                                                                       X
    Wisconsin                                                                                                         X                 X
    Wyoming                                                                                                           X
    --------------------------------------------------------------------------------------------------------------------------------------------------------

        The details of each state's individual regulations also vary
    dramatically. The following examples only brush the surface of this
    variation, but illustrate how widely states have departed from one
    another in creating their open dating regulatory regimes:

       In Michigan, packaged perishable foods must include a date
            that may be displayed with or without explanatory terms such as
            ``sell by'' or ``best before,'' but if such terms are used,
            only particular phrases may be used.\123\

       Rhode Island requires that packaged bakery products contain
            pull dates.\124\

       New Hampshire and Georgia are the only states to explicitly
            single out pre-wrapped sandwiches for regulation.\125\

       In contrast with many other states, Minnesota and Ohio
            explicitly preempt local ordinances on food labeling, reserving
            all power in this arena to the state.\126\

       New York is one of nine states that have no regulations
            regarding food date labeling according to the qualifications
            assessed in this report.

    The figures on the preceding pages provide a broad overview of both the
    patterns and the variations in state-level regulation of date labels. A
    full list of state regulations can be found in Appendix C.
    Local Regulationsions
        Date labeling can also be regulated at the local level. The City of
    Baltimore, for example, prohibits the sale of any perishable food past
    its expiration date, whereas the State of Maryland does not.\133\ In
    cases where cities have more stringent date labeling regulations than
    the state in which they are located, inconsistency in the regulations
    could lead to even greater consumer confusion, and could also stand in
    the way of voluntary industry adoption of a more standardized dating
    system. Repealing or amending such city ordinances that do not improve
    public health and safety could allow for more consistency. For example,
    New York City used to require ``expiration dates'' on milk cartons even
    though the state of New York imposes no date labeling requirements on
    any foods.\134\ In September 2010, the city repealed its date labeling
    requirement and fell in line with the state-level approach.\135\ The
    city recognized that its own rule for open dates was not necessary to
    protect public health because if milk is ``handled properly,'' it will
    still be safe to consume even after the expiration date passes.\136\
    The City also noted that New York State had not reported any ``adverse
    public health effects, poor milk quality or a decrease in milk demand''
    arising from not requiring a ``sell by'' date at the state level.\137\
    The Role of Industry
        The inconsistent regulation of date labels at the Federal, state,
    and local levels means manufacturers and other industry actors often
    must decide the form and content of date labels.
        Where no regulations exist, as is the case in many states and for
    many categories of food, manufacturers are free to decide for
    themselves which foods will display an open date and which will not.
    Even when regulations mandate the presence of date labels on specific
    foods, they almost never dictate the criteria that industry should use
    to arrive at the date on the label, thus leaving the decision entirely
    to industry discretion.
        Some food trade organizations have responded to the lack of uniform
    regulations by creating their own voluntary guidance for open date
    labeling,138 but this guidance is not always consistent from one
    organization to the next.\139\
        Because of the lack of standardization, some retailers have even
    taken it upon themselves to create date labeling practices for products
    sold in their stores. For instance, in 2004 Wal-Mart started to require
    its suppliers to place a ``best if used by'' date on all food products
    in an effort to ensure consumers of the products' freshness.\140\
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              The inconsistent regulation of date labels at the Federal,
            state, and local levels means manufacturers and other industry
            actors often must decide the form and content of date labels.

        While this policy was created with the best of intentions and
    helped to standardize labels, this change may have in fact led to
    increased shelf-stable inventory that would have previously been sold
    without a date label now risks being wasted when the date labels
    expire.\141\
        With increased expectations for the food industry to address social
    and environmental concerns,\142\ improving the date labeling regime
    actually provides an opportunity for the food industry to better serve
    consumer interests while simultaneously creating positive environmental
    and social change. Food companies may be able to benefit financially by
    developing creative ``cause-related marketing'' strategies designed for
    consumers interested in reducing food waste and willing to purchase
    food items close to the expiration date.\143\

     Figure 5: Summary of Voluntary Guidelines and Informal Recommendations
       by Food Trade Organizations on Open Date Labeling of Food Products
    ------------------------------------------------------------------------

    -------------------------------------------------------------------------
        Association of Food Industries: Informally recommend open dating of
     olive oil.
        Food Marketing Institute: Support a voluntary ``sell by'' date
     accompanied by ``best if used by'' information.
        International Dairy-Deli-Bakery Association: Informally recommends
     manufacturers' guidelines (sell by/pull by) for foods that are put on
     display in the supermarket, such as deli meats.
        National Food Processors Association: For refrigerated and frozen
     foods, indicates that manufacturers are in the most knowledgeable
     position to establish the shelf life and consequently the specific date
     labeling information that is most useful to the consumer. To harmonize
     date labeling among food products, supports a month/day/year (MMDDYY)
     format, either alphanumeric or numeric.
        Specialty Coffee Association of America: Encourages members to put a
     ``born-on'' date on their products.
    ------------------------------------------------------------------------
    Source: Eastern Research Grp., Inc., Current State of Food Product Open
      Dates in the U.S. 1-13 (2003).

    Chapter 3: Shortcomings of the Current System
    Inconsistent and Unreliable Wording and Methods of Determinationion
        The lack of binding Federal standards, and the resultant state and
    local regulatory variability in date labeling rules, has led to a
    proliferation of diverse and inconsistent date labeling practices in
    the food industry. Open dates can come in a dizzying variety of forms,
    none of which are strictly defined or regulated at the Federal level.
    This haphazard system is not serving its purpose well.
        Though it is impossible to provide actual definitions as meanings
    can vary by state and phrases are not legally defined, the following
    terms can loosely be interpreted as: (1) the ``production'' or ``pack''
    date, which provides the date on which the food product was
    manufactured or placed in its final packaging; (2) the ``sell by''
    date, which provides information to retailers for stock control leaving
    a reasonable amount of shelf life for the consumer after purchase; (3)
    the ``best if used by'' date, which typically provides an estimate of a
    date after which food will no longer be at its highest quality; (4) the
    ``use by'' date, which also typically is a manufacturer's indication of
    the ``last date recommended for the use of the product while at peak
    quality''; (5) the ``freeze by'' date, which is a reminder that quality
    can be maintained much longer by freezing product; and (6) even the
    ``enjoy by'' date used by some manufacturers, and not clearly defined
    in a way that is useful to consumers. It is important to note that the
    meaning of these terms may vary from product to product and among
    manufacturers of the same products because there is no industry
    consensus surrounding which date label prefix should be applied to
    different categories of food products.\144\
        In addition to discretion over which label to use, industry actors
    vary in their decisions about when to include a label on a product at
    all. In a 2003 report prepared for the FDA, six manufacturers were
    interviewed and asked to describe their processes for deciding when to
    include an open date on one of their products, and their answers varied
    widely.\145\
        Most manufacturers agreed on certain important factors, including
    the perishability of a product,\146\ but beyond that there was a wide
    range of different responses, illustrating the broad level of
    discretion left to manufacturers. For instance, some made their
    decision based on space constraints on packaging while others
    considered the decision as part of their marketing strategy.\147\
    Industry guidelines, likewise, do not typically influence
    manufacturers' decisions to include date labels and do not usually
    identify which shelf stable foods should bear open dates.\148\
        Manufacturers are left to decide for themselves not only when to
    use a date label and what label term to use, but, importantly, how this
    date will be determined.\149\ According Chapter 3: Shortcomings of the
    Current System to the 2003 report prepared for FDA, a key motivating
    force behind a manufacturer's decision to open date is the protection
    of the consumer's experience of a product,\150\ in order to safeguard
    that product's reputation.\151\
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Manufacturers and retailers accomplish this goal by focusing on the
    product's shelf-life-typically conceptualized as ``the end of consumer
    quality determined by the percentage of consumers that are displeased
    by the product.'' \152\
        Manufacturers and retailers are ultimately free to define shelf-
    life according to their own market standards, ``with some accepting a
    predetermined degree of change'' in product quality over time, ``and
    others finding that no change is acceptable.'' \153\ Those
    manufacturers and retailers opposed to any quality change in their
    product generally choose to set their label dates earlier to ensure
    that food is consumed only at its peak freshness, in order to protect
    their brand integrity. Some manufacturers use lab tests to determine
    the shelf life, others use literature values, and yet others use
    product turnover rates or consumer complaint frequency.\154\
    Ultimately, there is a high degree of variability, arbitrariness, and
    imprecision in the date labeling process. As explained by one food
    scientist and former food industry official describing one process that
    uses grades assigned by professional tasters:

              If the product was designed, let's say, to be a 7 when it was
            fresh, you may choose that at 6.2, it's gotten to the point
            where [you] don't want it to be on the market anymore . . . .
            If it's 6.0, would most people still find it reasonably good?
            Absolutely. . . . But companies want people to taste their
            products as best they can at the optimum, because that's how
            they maintain their business and their market shares.\155\

    Thus, while open code dating appears on the surface to be an objective
    exercise, consumer preferences and brand protection color the way in
    which most of these dates are determined. In most cases, consumers have
    no way of knowing how a ``sell by'' or ``use by'' date has been defined
    or calculated, and to reiterate from above, the method of calculation
    may vary widely ``by product type, manufacturer, and geography.'' \156\
        It is reasonable that manufacturers want to protect their brands'
    reputations. Still, here may be a place for more objective and
    empirically-grounded methods for determining quality-based dates. One
    such method that could be applied for some products is the use of
    empirical shelf-life testing.\157\ A product's ``shelf-life'' can be
    determined by testing and monitoring the product over its actual shelf-
    life, which can take several years for shelf-stable products.\158\
    Alternatively, manufacturers can employ accelerated shelf-life testing,
    a practice involving the study and storage of food products under test
    abuse conditions.\159\ However, at present, the use of shelf-life
    testing is almost entirely optional.\160\ For those manufacturers that
    lack the requisite time, money, expertise, or initiative to conduct
    such testing, open dates end up being ``no more than very good guesses
    or industry practice.'' \161\ The 2003 report prepared for the FDA
    noted that creating a mandatory national open dating system, which
    would standardize date labeling practices across the nation, could also
    present an opportunity to require manufacturers to implement more
    rigorous shelf-life testing.\162\
        The variability of how dates are chosen and expressed is also
    reflected in FDA's Food Label and Package Survey from 2000-2001, which
    found that just under 55 percent of food products sold had any kind of
    date label.\163\ Out of that 55 percent, Figure 6 shows the breakdown
    of the label types that were employed. It is possible that dating
    practices have increased since this survey, particularly after Wal-Mart
    began requiring its suppliers to utilize ``best if used by'' dates in
    2004.\164\
    Figure 6: Distribution of Label Date Types \165\
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              * ``Date stamped'' refers to products stamped with a date,
            but without any accompanying words.

        Even when given a more limited scope of date label terminology to
    choose from, the issue of food waste persists. For example, in the
    United Kingdom, manufacturers are bound under Directive 2000/13/EC of
    the European Parliament and of the Council (EU Food Labeling Directive)
    to include either a quality-based ``best before'' date or a safety-
    based ``use by'' date.\166\ However, it remains up to the industry to
    determine which of those two terms to use, leading to inconsistencies
    in the labeling of similar products, as evidenced by this finding from
    a United Kingdom industry report:

              . . . 75 percent of yogurt lines were marked with a ``use
            by'' date and 25 percent with a ``best before'' date. In
            conversations with retail food technologists, it was explained
            that some products like yogurts, fruit juices and hard cheeses
            do not necessarily constitute food safety risks but simply
            spoil and therefore may not need to have a ``use by'' date
            applied at all.\167\

    Further, industry actors are often more likely to include ``use by''
    dates (defined as safety dates) on products that would merit a ``best
    before'' date (defined as quality date), causing further unnecessary
    waste because the United Kingdom bans the sale of food products after
    the ``use by'' date.\168\ In 2011, in response to the persistently high
    rates of food waste, the U.K. Department for Environment, Food and
    Rural Affairs (DEFRA) issued ``Guidance on the application of date
    labels to food'' to help industry comply with the E.U. Food Labeling
    Directive using standardized methods.\169\ The DEFRA Guidance provides
    a decision tree for industry actors that explains when to use which of
    the two mandatory dates, in order to try to streamline the date
    labeling used on similar products.\170\ The Guidance also suggests that
    retailers should make ``display until'' and ``sell-by'' dates, which
    were unregulated and, as in the United States, used primarily as stock
    rotation tools, less visible to consumers in order to reduce
    unnecessary food waste due to consumer confusion regarding those
    particular dates.\171\
        Back in the United States, the end result of the lack of
    standardization of date labels is consumer confusion and inability to
    make informed decisions based on the information contained in date
    labels, which ultimately leads to food waste. Because consumers cannot
    understand what factors led to the selection and setting of label
    dates, often they mistakenly assume that these dates are tied to food
    safety,\172\ whereas in reality their true function is to convey
    information about freshness and quality grounded in the preferences of
    consumers themselves and the particular brand protection practices of
    manufacturers. This misunderstanding also creates the opportunity for
    an unscrupulous manufacturer to maximize profits at the expense of
    consumers' economic interests. The fact that consumers and stores throw
    away products unnecessarily can lead to increased profits for
    manufacturers if consumers are purchasing more products and doing so
    more often. According to at least one supply chain expert, some
    manufacturers may artificially shorten stated shelf lives for marketing
    reasons.\173\ More empirical research on this topic would be helpful.
    The current system provides few checks to prevent manufacturers from
    engaging in such a practice.

              Thus, while open code dating appears on the surface to be an
            objective exercise, consumer preferences and brand protection
            color the way in which most of these dates are determined. In
            most cases, consumers have no way of knowing how a ``sell by''
            or ``use by'' date has been defined or calculated, and to
            reiterate from above, the method of calculation may vary widely
            ``by product type, manufacturer, and geography.''
    Consumer Confusion and Misinterpretation of Link to Food Safety
        The current food dating system leads to consumer confusion and
    misinterpretation in two fundamental ways. On one hand, evidence
    suggests that consumer overreliance on label dates results in food
    being wasted because of safety concerns that are not founded on actual
    risks. At the same time, such overreliance can also cause consumers to
    ignore more relevant risk factors affecting food safety, including the
    importance of time and temperature control, as discussed further below.
    Label dates thus create a false (and potentially dangerous) sense of
    security for consumers who uncritically consume foods before their
    marked expiration date.\174\ Thus, neither the public's health nor
    resource conservation are well-served by the current date labeling
    system.
    Mistaken Belief That Past-Date Food Is Unsafe to Consume
        Although most date labels are intended as indicators of freshness
    and quality,\175\ many consumers mistakenly believe that they are
    indicators of safety.\176\ A 2007 survey of U.S. adults funded by
    USDA's National Integrated Food Safety Initiative of the Cooperative
    State Research, Education, and Extension Service (CREES) found that
    many of the respondents could not identify the general meanings of
    different open dates, with fewer than half (44 percent) correctly
    describing the meaning of the ``sell by'' date and only 18 percent
    correctly indicating understanding of the ``use by'' date.\177\ In
    addition to this substantial confusion, 25 percent had the
    misconception that ``sell by'' date identifies the last day on which a
    product can be consumed,\178\ rather than an inventory-control date
    that simply recommends how long a product should be displayed on the
    shelf vis-a-vis newer products.\179\ A separate survey by the FMI found
    that 91 percent of consumers reported that at least occasionally they
    had discarded food past its ``sell by'' date out of concern for the
    product's safety, with 25 percent reporting that they always did
    so.\180\ Moreover, a report sponsored by the National Advisory
    Committee on Microbiological Criteria for Foods (NACMCF) and several
    Federal agencies \11\ highlighted that ``54% of consumers believed that
    eating food past its sell by/use by date constituted a health risk.''
    \182\ Other studies found that a majority of respondents believe either
    that food is no longer safe to be sold183 or that it is no longer safe
    to be consumed after its open label date.\184\ Individuals from all age
    and income groups are confused about the current system of date
    labels.\185\
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        In fact, the current date labeling system does not address safety,
    nor was that ever its main impetus. As referenced previously, the OTA's
    landmark report on open code dating from 1979 concluded:

              There is little or no benefit derived from open dating in
            terms of improved microbiological safety of foods. For foods in
            general, microbiological safety hazards are a result of
            processing failures, contamination after processing, and abuses
            in storage and handling. These factors are usually independent
            of the age of the product and have little relationship to an
            open date.\186\

    USDA affirms that ``even if the date expires during home storage, a
    product should be safe, wholesome and of good quality if handled
    properly and kept at 40 F or below.'' \187\ Echoing this assertion,
    the FDA's Center for Food Safety and Applied Nutrition (CFSAN) has
    noted that most foods, when kept in optimal storage conditions, are
    safe to eat and of acceptable quality for periods of time past the
    label date.\188\
        Other studies also show there is no direct correlation between food
    safety and date labels. In the United Kingdom, representatives from
    retail and manufacturing compiled a report with a wide-ranging review
    of date labels, consumer safety, and food waste. The report, published
    in 2011, found no direct evidence linking foodborne illness in the
    United Kingdom to consumption of food past its expiration date.\189\
    Food safety experts agree that absent time/temperature abuse, when food
    is allowed to remain too long at temperatures favorable to the growth
    of foodborne microorganisms, many food products will be safe past their
    date labels, although there are exceptions for certain classes of
    ``ready-to-eat'' perishable foods and foods to be consumed by certain
    susceptible populations,\190\ both of which are discussed below.
    Quality-based date labels are not relevant food safety indicators
    because a food will generally ``deteriorate in quality to the point
    that it would not be palatable to eat before there [is] an increase in
    the level of food safety risk.'' \191\ Quality-based label dates are
    generally set far before this spoilage point, meaning that there is a
    significant amount of time past the label date during which the food is
    still safe to eat.

              USDA affirms that ``even if the date expires during home
            storage, a product should be safe, wholesome and of good
            quality if handled properly and kept at 40 F or below.''

        The incredible variation between state and local regulations
    regarding date labeling and the sale of food after the label date
    further supports the conclusion that the use of these dates does not
    advance public health in a meaningful way. While some states, like
    Massachusetts, regulate date labeling and sale after some date labels
    aggressively, a significant number of states, including New York, leave
    the field completely unregulated. Given that the same food products are
    no more or less hazardous in different states, it appears that at least
    some states are pursuing date labeling policies that lack robust
    empirical support. If persuasive evidence comes to light showing that
    there is a proven correlation between label dates and food safety, then
    all jurisdictions should adopt similar regulations. Alternatively, and
    more realistically, jurisdictions with more stringent date labeling
    requirements should review whether their regulations are actually
    designed to address food safety risks. Further research on the relative
    rates of foodborne illnesses in states that have restrictions on sale
    after date versus those that do not may be instructive on the level of
    protection that those regulations actually provide.
    Mistaken Belief that Pre-Date Food Is Always Safe To Consume
        While the mistaken belief that past-date foods are unsafe leads
    directly to food waste, overreliance on date labels may also have a
    detrimental effect on consumer health and safety. When consumers put
    undue faith in date labels, they may actually ignore more salient
    determinants of food safety, putting themselves at risk. Specifically,
    when consumers rely on a date label that emphasizes a product's
    estimated lifespan without any accompanying information about the
    storage temperature or conditions under which the food was or should be
    kept, they are acting without critical information. A label date, if it
    is even designed to communicate safety, could truly only convey
    meaningful safety information if it were presented in conjunction with
    the time/temperature history of the product, meaning how long and at
    what temperatures the food was stored.\192\ Consumers often do not
    understand the relationship of time and temperature to safety; many
    people do not realize that the amount of time food spends in the danger
    zone (40 to 120 Fahrenheit) is the main criterion they should use to
    evaluate food safety, rather than total storage time.\193\
        When food is left at unsafe temperatures for too long or is
    otherwise compromised, an open date becomes essentially meaningless,
    but consumers may trust the label date and use the product anyway.\194\
    The 1979 OTA report specifically expressed this concern, stating that
    date labels might disserve consumers by giving them a false sense of
    security.\195\ A 2011 government report out of the United Kingdom also
    recognized the possibility that the ``proliferation of `use by' dated
    products increases risk for consumers by diluting key food safety
    messages.'' \196\ This worry about false confidence is borne out in a
    study reporting that more than \1/2\ of all American adults think the
    ``use by'' date is an indicator of microbiological safety.\197\
    A Different Case: Listeria monocytogenes and Refrigerated Ready-to-Eat
            Foods
        There is one area of food safety concern that does implicate date
    labeling as a potential regulatory solution: the risk of Listeria
    monocytogenes in ready-to-eat-foods. According to FDA's Center for Food
    Safety and Applied Nutrition, Listeria is ``a bacterium that occurs
    widely in both agricultural . . . and food processing environments.''
    \198\ If ingested by humans, the bacterium can cause listeriosis, a
    potentially life-threatening infection.\199\ For most foodborne
    pathogens, ``the duration of refrigerated storage is not a major factor
    in foodborne illness.'' \200\ But in the case of food contaminated by
    Listeria, the length of refrigerated storage time is a factor,\201\
    since this organism can grow and multiply even while under
    refrigeration.\202\ For this reason, the Federal Government identified
    Listeria as a pathogen for which a safety-based ``use by'' date label
    could be a useful preventive tool.\203\ However, because Listeria is
    destroyed upon cooking, this risk is generally limited to ready-to-eat
    foods that are not heated before consumption.\204\ Indeed, of the 14
    large-scale foodborne listeriosis outbreaks reported to the Centers for
    Disease Control and Prevention (CDC) between 1973 and 2000,\205\ almost
    all were known or suspected to have involved refrigerated ready-to-eat
    foods.\206\
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        While Listeria in ready-to-eat-foods is a legitimate problem in the
    food supply, this concern does not justify, nor is it addressed by, the
    current date labeling system. Listeria concerns in ready-to-eat foods
    could be more effectively addressed using targeted, well-tailored
    interventions that might include a date that explicitly indicates when
    the food is safe to consume, but would also have other information
    beyond just the date. Such interventions could integrate important food
    safety considerations at all stages of the supply chain, like the
    prevention of time/temperature abuse,\207\ which is not assured by the
    imposition of date labels alone. Federally-regulated open dating may be
    appropriate for discrete categories of foods that pose a unique public
    health risk, such as ready-to-eat products. But the use of specialized
    regulations applicable only to such high-risk foods would better
    protect consumers if they allowed for consumers to distinguish between
    truly pertinent safety labels and generic, quality-based labels.
    Indeed, recognizing the dangers inherent in ready-to-eat foods, FDA has
    already promulgated regulatory guidance focusing on this category in
    the FDA Food Code.\208\ The Food Code takes a holistic approach to the
    processing and handling of ready-to-eat foods along the supply chain,
    and provides specific time/temperature guidelines for the holding and
    consumption of ready-to-eat foods at the retail level.\209\ Date
    labeling requirements constitute one element of this integrated
    approach \210\ and complement the more important goals of minimizing
    Listeria contamination and time/temperature abuse.\211\
        It is even possible to imagine finer-grained distinctions being
    made within the category of ready-to-eat foods, allowing for better-
    tailored and effective date labels. This is because certain categories
    of ready-to-eat foods that have been found to support the growth of
    Listeria carry a much higher risk than others. When CFSAN conducted a
    quantitative assessment of the relative risk of 23 food categories with
    a documented history of Listeria contamination, only two categories
    were designated as being at ``very high risk'' of contamination: ``Deli
    Meats'' and ``Frankfurters, Not Reheated.'' \212\ Categories with a
    ``very low risk'' included ``Hard Cheese,'' ``Ice Cream and Other
    Frozen Dairy Products,'' and ``Processed Cheese.'' \213\ While foods
    posing a very high risk necessitated ``immediate attention in relation
    to the national goal for reducing the incidence of foodborne illness,''
    very low risk foods were deemed ``highly unlikely to be a significant
    source of foodborne listeriosis'' absent ``a gross error in their
    manufacture.'' \214\ Thus, even according to FDA's own research,
    Listeria-related food safety risks do not extend to every product type
    within the ready-to-eat category.
        Finally, but no less importantly, it should be noted that serious
    illness from Listeria occurs almost exclusively in susceptible
    populations like the elderly, those with compromised immune systems,
    and babies in utero.\215\ It may therefore make more sense to target
    those population specifically. For example, Connecticut's food safety
    regulations allow food service establishments to serve raw or
    undercooked items, but makes explicit that such exemption does not
    apply in the case of ``food service establishments serving highly
    susceptible populations such as immuno-compromised individuals or older
    adults in hospitals, nursing homes, or similar health care facili-
    ties . . . and preschool age children in a facility that provides
    custodial care.'' \216\ Labels could also carry population-specific
    messaging. Education is important as well, such as when government
    agencies advise pregnant women to avoid deli meats and unpasteurized
    cheeses because of the Listeria risk.\217\
        As laid out in this section, it is possible to address product-
    specific food safety concerns (e.g., for ready-to-eat foods) by using
    clear, targeted interventions, including standardized, effective date
    labeling,\218\ without creating unnecessary and unwanted collateral
    effects across the entire food system.\219\ For most foods, including
    many ready-to-eat foods, the current date labeling framework does not
    advance public health in any significant way. For the reasons presented
    above, food safety considerations should not constitute a primary
    justification for maintaining present date labeling practices. Instead,
    specific practices should be tailored to ready-to-eat-foods to help
    consumers make better food safety choices with regard to those high-
    risk foods.
    Consumer Food Waste
        Consumer confusion surrounding the meaning of date labels also
    contributes to the high rate of waste of edible food. Food loss has
    been defined as the ``edible amount of food available for human
    consumption but [] not consumed.'' \220\ Food waste is a subset of food
    loss, representing the amount of edible food that goes unconsumed due
    to human action or inaction.\221\ By conservative estimates, U.S. food
    losses amount to 160 billion pounds of food annually.\222\ This waste
    has important economic, environmental, and ethical implications.
        To start, it is estimated that per capita food loss is $390 per
    year, putting the total food loss for a family of four at $1,560
    annually.\223\ One expert in consumer food waste thought that figure
    was too low because it did not capture the estimated ten percent of
    consumer food lost to the garbage disposal.\224\ With that additional
    portion factored in, food losses could cost the average American family
    $2,275 annually.\225\
        On the environmental front, studies show that more than 25 percent
    of all the freshwater used in the United States is squandered on the
    production of wasted food.\226\ The EPA reports that over 34 million
    metric tons of food scraps were generated in 2010,\227\ almost all of
    which went into the waste stream, making food the greatest source of
    waste headed to landfills in the United States at 21 percent of all
    landfill input.\228\ The most alarming statistic is that food loss in
    the United States has been on the rise for the past several decades,
    with per capita food loss increasing by 50 percent since 1974.\229\
        Recent studies conducted in the United Kingdom have explored the
    connection between food waste and food date labeling. A report
    published in 2011 by WRAP, a not-for-profit organization that works to
    reduce food waste in the United Kingdom and other European countries,
    reported that confusion over date labeling accounts for an estimated 20
    percent of avoidable household food waste.\230\ Comprehensive research
    on the connection between date labels and food waste has not yet been
    conducted in the United States.
        As the previous section makes clear, the majority of American
    consumers do not understand date labels, with a significant chunk of
    them mistakenly believing that eating food past its ``sell by'' or
    ``use by'' date poses a health risk.\231\ Consumers' discarding of food
    on or before the ``sell by'' date offers further evidence of food waste
    that is linked to date labeling because that date does not in fact
    indicate the food is spoiled. In a 1987 study, 17 percent of weekly
    household waste was reported discarded because it was ``past a pull
    date, an expiration date, or, in some cases, a series of production
    code numbers misinterpreted as a date,'' or ``because the consumer
    believed that the food was too old by some other time standard.'' \232\
    Thus, while more research would help to further define the scale of the
    problem, it is already quite clear that date labels play a central role
    in generating food waste among U.S. consumers.
    Economic Losses and Inefficiencies for Manufacturers, Distributors, and
            Retailers
        Because of the consumer misperceptions that surround the meaning of
    date labels, the practice of open dating usually results in a higher
    rate of unsaleable--and hence often discarded--food for retail
    stores.\233\ In the United States, an industry initiative estimated
    about $900 million worth of inventory was removed from the supply chain
    in 2001 due to date code expiration and identified the lack of
    standardization around date coding as one of the five factors driving
    that loss.\234\ This food represents a direct economic loss for
    retailers, and ultimately could be a cost born by consumers in the
    price of goods. Aside from the costs of wasted food, inconsistent date
    labeling regulations that are not benefiting public health can also
    make food businesses less efficient. Retail experts have reported that
    it can be difficult for large-scale food corporations to comply with
    divergent state regulations.\235\ Indeed, one of the driving
    motivations for the NCWM when it created the Uniform Open Dating
    Regulation was the fear that variation between state regulations on
    date labels would hamper the ``orderly flow of commerce'' among
    states.\236\ With the current regulations, companies often must use
    separate packaging lines for products entering different jurisdictions
    in order to comply with these divergent state laws. Further, food
    packers and manufacturers have an incentive to follow the strictest
    state labeling regulations for all of their products, even for products
    sold in states with no regulations. Because no states prohibit date
    labels, this method can be less costly for companies. However, this
    means that date labels could be having the same confusing impacts even
    in states without regulations because products in all states wind up
    with labels that are not protecting consumers.
    Challenges for Food Recovery Initiatives and Anti-Hunger Organizations
        The food waste that is generated by date labeling practices can and
    often is offset by back-end efforts to reclaim, rescue, or repurpose
    past-date foods in order to prevent them from being discarded. One
    approach to mitigating food waste is to divert expired foods to anti-
    hunger organizations that can process and distribute these products to
    food-insecure individuals and families. Safe, wholesome past-date
    products constitute a significant portion of the food relief that is
    distributed by food banks and soup kitchens.\237\ As well, there are a
    number of new organizations that specialize in linking anti-hunger
    initiatives with past-date or otherwise unsaleable foods.\238\
        Another way that retailers can mitigate food waste is by selling
    past-date products at lower prices through a designated ``discount''
    section of the store \239\ or, alternatively, to external businesses
    including freestanding expired food stores \240\ or expired food
    auctions.\241\ These retail avenues give savvy, price-conscious
    consumers the option of voluntarily foregoing the quality standards
    indicated by a date label in exchange for often significant cost
    savings.
        Despite these promising initiatives, many of the same distorting
    and disorienting effects caused by date labels in the traditional
    retail context can also be present in the past-date retail market.
    Consumer confusion surrounding the meaning of date labels and their
    relationship to food safety severely limits the market for past-date
    products. Experts in food recovery \242\ and food waste \243\ report
    that there is also widespread confusion amongst anti-hunger program
    administrators over the meaning of various date labels. Food safety
    officers working with anti-hunger organizations must consequently spend
    considerable time and effort educating workers about the date labeling
    system, and those workers must in turn educate clients and end-users
    when they express concerns or uncertainty about the products they are
    receiving.\244\
        Laws in 20 states plus the District of Columbia also explicitly
    regulate the sale (and sometimes even donation) of foods beyond their
    label date (see Figure 3). Donors may also be concerned about their
    liability associated with food-safety, even though they are protected
    by state and Federal ``Good Samaritan'' laws that exist to protect from
    liability the corporations and individuals who donate food to nonprofit
    organizations.\245\ Finally, state and local food inspectors have been
    known to frustrate food recovery efforts on the basis of questionable--
    or, in some cases, clearly mistaken--interpretations of how local
    health codes and food safety laws view past-date foods.\246\ For
    example, an inspector may assume that a past-date product cannot be
    safe or wholesome, even though date labels alone are not reliable
    indicators of safety or wholesomeness. All of these complications
    stemming from date labeling practices make it more difficult to use
    food recovery methods to mitigate the food waste that is caused by
    those practices.
    Chapter 4: Recommendations
        A new system for food date labeling in the United States is needed.
    This system should have uniform language that clearly communicates to
    consumers the meaning of dates as well as other food safety and
    handling information. The system should be the same throughout the
    United States for foods within the same category of products, and to
    the extent reasonable, across all classes of food products.
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The recommendations proposed here respond directly to the myriad
    problems linked to the current date labeling legal framework. They are
    broken into two sections. The first section proposes changes to date
    labeling practices in order to standardize the labels, reduce consumer
    confusion, improve consumer food safety, and decrease food waste. The
    second section describes the activities that specific actors, such as
    industry players, governmental bodies, and consumers, should take to
    spur date label reform and thus improve food safety and decrease food
    waste.
    Standardize and Clarify the Food Date Labeling System Across the United
            States
    1. Make ``Sell By'' Dates Invisible to the Consumer
        ``Sell by'' dates are designed for stock control by retailers, as a
    business-to-business communication between manufacturers and retailers.
    As described above, they offer no useful guidance to consumers once
    they have brought foods home, and are often misinterpreted by consumers
    as safety dates. Guidance on when to eat the product may be helpful to
    consumers, but guidance on when to sell it is not. Affixing these dates
    in a closed date format, per prior industry practice,\247\ will allow
    for efficient retail stock rotation without unnecessarily confusing
    consumers. Those same products could then display dates that do provide
    useful guidance to the consumer, such as those described in the next
    recommendation.
        The British approach is illustrative here. As described above, food
    products in the United Kingdom are required to include ``use by'' or
    ``best before'' date labels under the E.U. Food Labeling
    Directive.\248\ But despite the Directive's requirements to use only
    two qualifying prefixes before date labels, U.K. law still allowed food
    companies the discretion to mark food products with ``display until''
    or ``sell by'' dates in order to facilitate stock control.\249\
    Research indicated that consumers were confused when faced with ``sell
    by'' or ``display until'' dates, and 29 percent of consumers could not
    correctly identify their meaning.\250\ To solve this confusion, the
    DEFRA Guidance mentioned above recommended that retailers make ``sell
    by'' and ``display until'' dates less visible to the consumer.\251\
    While the change is too recent to determine its impact, a number of
    experts in the U.S. retail sector have suggested a similar change.\252\
    2. Establish A Reliable, Coherent, and Uniform Consumer-Facing Dating
            System
        There is little to no benefit from states regulating food product
    dating differently from one another, or from companies independently
    determining the language that will be used on date labels, if this
    discretion is not in fact leading to any real health or safety
    benefits. In fact, a joint industry task force examining this issue in
    2007 concluded that ``industry and consumers would benefit from a more
    common approach to how [open date] information is communicated and to
    how the supply chain uses this information to manage inventory.'' \253\
        The work of various actors, including industry members,
    policymakers, food safety experts, consumer behavior experts, and
    consumer advocates, is needed to establish the most effective system of
    consumer-facing dates. A new system should include the following
    components:

       Establish standard, clear language for both quality-based
            and safety-based date labels. Language used on food products
            should more clearly and accurately communicate a date's
            meaning. Consumer research should be used to determine the
            exact wording that best communicates these meanings, but the
            language should be standardized, unambiguous, and should
            clearly delineate between safety-based and quality-based dates.
            For example, for foods where safety may play a role in the
            date, ``safe if used by'' more clearly communicates the safety
            aspect as compared to ``use by.'' In addition, more
            descriptive, explicit statements should be used. For example,
            instead of short phrases like ``best before'' for quality-based
            labels, a phrase such as ``Peak quality [or freshness]
            guaranteed before MMDDYY'' would better convey relevant
            information.\254\ If space constraints on packages become
            problematic, standardized symbols or visual cues may also be of
            use to communicate these concepts.

          One additional option would be for government to require, or
            industry to voluntarily adopt, boilerplate disclaimers on any
            quality-based date labels. For example, manufacturers could
            include a statement that ``This date is an indicator of
            quality. Product safety has not been tested or linked with this
            date,'' or a statement that ``Any dates displayed are not
            safety dates. They have not been evaluated by FDA.'' While this
            may require more space on packages, similar disclaimers are
            already employed by FDA in other regulatory contexts.\255\

       Include ``freeze by'' dates and freezing information where
            applicable. Including ``freeze by'' dates on food products,
            especially perishable products, could reduce the amount of food
            wasted by consumers. According to USDA FSIS, ``once a
            perishable product is frozen, it doesn't matter if the date
            expires because foods kept frozen continuously are safe
            indefinitely.'' \256\ For consumers concerned about being
            unable to use a food product before its expiration date, or
            concerned that such a product may deteriorate in quality after
            the expiration date, the presence of a complementary ``freeze
            by'' label could serve as a reminder to freeze the product
            instead of discarding it. The best expression for this may be
            ``use or freeze by.''

          More generally, it is important to raise consumer awareness of
            the benefits of freezing food and the abundance of different
            food products that can be successfully frozen. In the United
            Kingdom, food products that are ``suitable for home freezing''
            are marked with a snowflake label.\257\ American food companies
            or retailers could implement a similar symbol to communicate
            this information to consumers and provide helpful guidance on
            how to maintain the product's quality when freezing it.
            Furthermore, education campaigns aiming to reduce food waste
            should focus on reiterating the benefits of freezing as one
            component of their message.

       Remove or replace quality-based dates on nonperishable,
            shelf-stable products. In order to reduce food waste, it may be
            most effective to remove quality-based dates, such as ``best
            before'' on non-perishable, shelf-stable foods.

          Even if quality-based dates were removed, information on shelf
            life after opening should still be communicated, such as ``Best
            within XX days of opening.'' As an alternative, it may be
            desirable to provide consumers with a ``pack date'' and a
            general estimate of the product's shelf-life (for example,
            ``maximum quality XX months after pack date'') on certain
            products to help consumers make informed and independent
            quality-based judgments.
          Where there is not a safety concern, such an approach would
            encourage consumers to make judgments about freshness and
            quality by actively investigating the food product at issue
            instead of relying on an industry-provided label. This approach
            would make it more likely that food is only disposed of when it
            has actually degraded to a quality level that the individual
            consumer finds to be personally unacceptable, and it would
            circumvent the incentive that manufacturers and retailers have
            to set date labels too conservatively. In addition, this
            practice would place more weight on labels placed on products
            that raise safety concerns, such as ready-to-eat-foods that
            pose a heightened Listeria risk.

       Ensure date labels are clearly and predictably located on
            packages. Consumers should be able to easily locate date label
            information on packages. One option would be the creation of a
            ``safe handling'' information box on food products, akin to the
            ``nutrition facts'' panel. This safe handling box could include
            information about the pack date, recommended best quality date
            or use by date, depending on the type of food, guidance for
            freezing, and information about how best to store the product.

       Employ more transparent methods for selecting dates.
            Assuring that date labels reflect the true shelf-life of
            products would give consumers who rely on date labels the
            maximum amount of time to consume their purchases before the
            date expires. Those who set label dates could be required where
            practical, to engage in quantitative shelf-life testing to
            determine a product's label date. There are currently no such
            requirements at the Federal level, except in the case of infant
            formula.\258\ An even more robust version of this requirement
            would require the testing to be done by some kind of
            independent body, external to the entity setting the date.
            Alternatively, manufacturers and retailers could be required to
            use shelf-life guidelines for specific foods that are pre-set
            by the government or by authorized private entities.
    3. Increase the Use of Safe Handling Instructions and ``Smart Labels''
        As stated above, experts agree that safe handling is the most
    important factor in keeping food safe. Therefore, including safe
    handling instructions on packages or other clear, pertinent food safety
    indicators can help ensure a better consumer experience.
        The Federal Government has already started to explore the
    possibility of creating a system of labels that independently convey
    relevant food safety information; these labels would likely emphasize
    the central importance of storage temperature and storage conditions in
    improving food safety outcomes.\259\ For example, raw meat and poultry
    packages must be labeled with ``Safe Handling Instructions'' that
    remind consumers about the importance of storage temperature, cross-
    contamination, thorough cooking, and safe holding.\260\
        Recognizing the limitations of date labels without any additional
    knowledge of a food product's temperature history, several experts have
    proposed more sophisticated ``smart labels'' that use technology to
    indicate the actual storage history of a product, such as the duration
    at each temperature.\261\ One example of this is a ``Time-Temperature
    Integrator'' (TTI),\262\ a small tag attached to a food product that
    changes color as a function of time-temperature history.\263\ When
    using a TTI, manufacturers could use a label statement like `` `Use by
    MM-DD-YY unless tag turns grey.' '' \264\ A smart label would be more
    expensive than a date label alone, but it could be an important tool
    for conveying useful safety information to consumers while reducing
    food waste. This technology would be particularly beneficial to use on
    those foods that pose a high risk to consumer health, such as ready-to-
    eat foods. In addition to the TTI, other models have been piloted or
    are in development in the United States and internationally.\265\
    Increased government funding and research support could help in the
    development of truly cost-effective smart labels and thereby decrease
    food safety concerns for those foods identified as being most risky.
        Another potential way to convey a product's manufacturing or
    storage information would be to use Quick Response Codes (``QR Codes'')
    to convey any such relevant additional information. QR codes allow a
    user to ``read'' a barcode with their smartphone and then be
    transported to a website. This would allow the manufacturer to deliver
    ample information without the restrictions of on-package space
    constraints and would also provide the manufacturer with an additional
    touch point to the consumer.
    The Role of Industry, Government, and Consumers
        Congress, Federal administrative agencies, state legislatures,
    state administrative agencies, the food industry, the non-governmental
    sector, and consumers all have a role to play in reducing food waste
    and reforming the American date labeling regime and can start acting
    now. Solutions targeted at each stakeholder group are included below.
    1. We Encourage Food Industry Actors To Commit To
       Converting to a closed-date system for sell by information.
            Retailers, distributors, and manufacturers alike should convert
            all ``sell by'' or ``display until'' dates to a closed-date
            system. With a majority of consumers mistakenly believing
            ``sell by'' dates indicate the last day a food can be safely
            consumed, converting this information to a coded format will
            avert a significant amount of premature food disposal. This
            change can and should happen immediately.

       Establishing a more standardized, easily understandable
            consumer-facing dating system. As time and care will be
            necessary to establish the most effective system of consumer-
            facing dates, we encourage businesses to jointly commit to
            creating a more standardized, less confusing system of date
            labeling that incorporates the guidelines outlined above.
            Perfecting such a system will take the input of various
            parties, and could be done by a multi-stakeholder task force or
            working group including industry members, policymakers, food
            safety experts, consumer behavior experts, and consumer
            advocates.

       Selling or donating near-expiration or expired products.
            Retailers should create dedicated in-store discount shelves for
            food near or just past its label date and, alternatively, sell
            or donate past-date or soon to be past-date foods to businesses
            and liquidators that specialize in selling past-date products.
            The benefits of these practices are threefold: retailers get to
            recover some revenue that would otherwise never materialize;
            consumers save money on perfectly edible food, albeit with the
            knowledge that their purchases may not be at peak quality; and
            more food is kept out of the waste stream. Moreover, a variety
            of interventions could be used to help food banks and food
            recovery organizations utilize past-date foods more
            efficiently. These changes include disseminating more accurate
            information about the meaning of date labels, as well as
            Federal and state Good Samaritan protections.

       Educating consumers on the meaning of expiration dates and
            on safe food handling. Point-of-sale displays, informational
            pamphlets, and online resources are all ways that food
            companies can help to educate consumers on how to handle food
            properly and when it can safely be consumed. These materials
            should distinguish between date labels that measure quality and
            those that indicate safety to reduce mistaken reliance on
            quality labels for judgments of food safety risk.\266\ Because
            consumers are still wary about consuming food at or near its
            label date, the viability of past-date food sales, as well as
            the success of any new standardized date label regime, is
            contingent upon increased consumer awareness and education.
    2. We Encourage Policy Change To Be Undertaken by the Following Actors
       Congress: The most straightforward way to create a uniform
            date labeling regime would be for Congress to establish a
            Federal law that creates a uniform date labeling framework
            across all states and all food products. As discussed in the
            History section, past Congressional efforts aimed to create a
            mandatory Federal regime by empowering FDA and USDA to create
            regulatory requirements. The creation of a similar legislative
            mandate could be pursued today.

       FDA, USDA, and other relevant Federal agencies: As described
            above, under the Food Drug & Cosmetic Act, FDA has both the
            authority and the responsibility to ensure product labels are
            not misleading.\267\ Like FDA, USDA has existing authority to
            protect consumers from misleading information on the products
            under its purview. Given the confusion and misinterpretation
            that persists, FDA and USDA already have sufficient statutory
            power to regulate date labels; if they believe they need
            additional authority to regulate date labels, they should
            identify any specific gaps. They should then use such authority
            to promulgate regulations that protect consumers from the
            misleading information that results from the wide variety of
            date labeling practices utilized by industry either voluntarily
            or in response to diverse state regulations.\268\

          In order to ensure consistency across products, FDA and USDA
            should establish a coordinated approach. Congress has given
            each agency equal power to regulate misbranded food, but in
            order to improve consumer understanding of date labels, this
            power should be used to create standardized date labeling
            requirements that apply in the same manner to all food
            products, regardless of which agency has jurisdiction. This
            will help to ensure that consumers can be educated on the
            meaning of such labels and thus increase food safety and reduce
            food waste. Once such a new system of date labeling is
            developed, it should be accompanied by a strong consumer
            awareness campaign to educate the public on the meaning of the
            new date labels. Other agencies involved in ensuring food
            safety, such as the CDC, can assist in these educational
            efforts as well.
          In addition (or in the meantime), since most states adopt some
            version of the FDA Food Code, FDA should strengthen its Food
            Code guidance, incorporate the recommendations in this report,
            and expand the guidance to cover all food products and increase
            consistency across products, instead of limiting it to only
            shellfish, refrigerated ready-to-eat-foods, and reduced-oxygen
            packaged foods.

       National Conference Weights and Measures/National Institute
            of Standards and Technology: We encourage the NCWM and NIST to
            revise the Model Uniform Open Dating Regulation published in
            NIST Handbook 130 to disallow open dating of ``sell by''
            information and create more specific guidance for open dates,
            incorporating the suggestions in this report to ensure the best
            outcomes for consumers. Creating a multi-stakeholder task force
            to tackle the issue could help address differing points of
            view. The NCWM standards exist as a model guide that could be
            used as a starting point for crafting new Federal guidelines,
            once they are updated according to these recommendations.
            Significant benefits of the NCWM approach include: (1) limiting
            the types of permissible date labels and (2) setting baseline
            requirements for the calculation of label dates.\269\

       States: In lieu of overarching Federal regulation, creating
            more consistency across state laws would be another way to
            improve date labeling rules in all states while creating more
            nationwide uniformity. We encourage states to coordinate in
            adopting standard regulations. If NIST Handbook 130 on Uniform
            Open Dating Regulation is amended, states could follow that
            guidance. If not, states should adopt laws that call for
            companies to make the changes recommended in the previous
            section. At a minimum, states and localities with particularly
            strict date labeling regulations should consider repealing
            those regulations that create barriers to uniformity if they do
            not have health benefits. For example, 20 states restrict the
            sale or distribution of past-date foods and thereby make food
            recovery efforts much more difficult.

       All levels of government: We encourage all levels of
            government to conduct public education campaigns to educate
            consumers on the meaning of date labels, proper food handling,
            and ways to determine when food is safe to eat.
    3. We Encourage Consumers and Consumer-Facing Agencies and
            Organizations To Act Now By
       Educating themselves and their constituents on the meaning
            of date labels. As described above, a majority of Americans
            mistakenly believe that date labels are indicators of safety
            rather than indicators of quality.\270\ Learning what dates
            actually mean will help consumers to make better food safety
            decisions, and will also reduce premature disposal of products,
            saving people money in the process. In particular, consumers
            should educate themselves about ``sell by'' dates, which are
            indicators of stock rotation and not of product quality or
            safety.

       Educating themselves and their constituents on safe food
            handling and consumption, including proper refrigeration
            temperatures. Many consumers are not aware that storage
            temperature is the main factor impacting food safety, rather
            than the amount of time that has passed since the product's
            production.\271\ Understanding the time/temperature
            relationship to food safety and the critical importance of
            keeping refrigerators at temperatures below 40 Fahrenheit is
            key to preserving food safely.\272\ People under 35 years of
            age have been identified as a demographic that could
            particularly benefit from more intensive food safety
            education.273

       Learning to tell when food can still be safely consumed.
            There are a variety of resources to help consumers learn how to
            assess the safety of food. These include the FMI's FoodKeeper
            Guide, which lists generic shelf lives of common products,\274\
            and resources that indicate visual red flags for microbial
            contamination, such as USDA's Kitchen Companion Safe Food
            Handbook.\275\ These types of tools can help consumers reduce
            their reliance on date labels for food safety judgments and
            make better food safety decisions.

        We have a significant challenge ahead in order to make a dent in
    the 40 percent of food that currently goes uneaten in the United
    States. There is no reason to wait--improving upon the convoluted and
    ineffective system of date labels is one of the more straightforward
    ways we can address this issue, while providing a service to consumers
    by improving both food safety outcomes and economic impacts.
    Appendix A: Congressional Delegation of Food Labeling Authority to
            Agencies
    Food and Drug Administration
    Food, Drug and Cosmetic Act. 21 U.S.C.  301 et seq. (2012)
    Definition of misleading. 21 U.S.C.  321(n) (2012).

        (n) If an article is alleged to be misbranded because the labeling
    or advertising is misleading, then in determining whether the labeling
    or advertising is misleading there shall be taken into account (among
    other things) not only representations made or suggested by statement,
    word, design, device, or any combination thereof, but also the extent
    to which the labeling or advertising fails to reveal facts material in
    the light of such representations or material with respect to
    consequences which may result from the use of the article to which the
    labeling or advertising relates under the conditions of use prescribed
    in the labeling or advertising thereof or under such conditions of use
    as are customary or usual.

    Prohibited acts. 21 U.S.C.  331 (2012).

        (b) The following acts and the causing thereof are prohibited . . .
    The adulteration or misbranding of any food, drug, device, tobacco
    product, or cosmetic in interstate commerce. Food ``shall be deemed to
    be misbranded . . . if (1) its labeling is false or misleading in any
    particular, or (2) in the case of a food to which section 350 of this
    title applies, its advertising is false or misleading in a material
    respect or its labeling is in violation of section 350(b)(2) of this
    title.''

    Definitions and standards for food. 21 U.S.C.  341 (2012).

        Whenever in the judgment of the Secretary such action will promote
    honesty and fair dealing in the interest of consumers, he shall
    promulgate regulations fixing and establishing for any food, under its
    common or usual name so far as practicable, a reasonable definition and
    standard of identity, a reasonable standard of quality, or reasonable
    standards of fill of container.

    Misbranded food. 21 U.S.C.  343 (2012).

        A food shall be deemed to be misbranded--(a) False or misleading
    label. If (1) its labeling is false or misleading in any particular, or
    (2) in the case of a food to which section 411 [21 USCS  350] applies,
    its advertising is false or misleading in a material respect or its
    labeling is in violation of section 411(b)(2) [21 USCS  350(b)(2)].

    Infant Formula Act. 21 U.S.C.  350a (2012).

        (a) Adulteration.

              An infant formula, including an infant formula powder, shall
            be deemed to be adulterated if--

                      (1) such infant formula does not provide nutrients as
                    required by subsection (i) of this section,
                      (2) such infant formula does not meet the quality
                    factor requirements prescribed by the Secretary under
                    subsection (b)(1) of this section, or
                      (3) the processing of such infant formula is not in
                    compliance with the good manufacturing practices and
                    the quality control procedures prescribed by the
                    Secretary under subsection (b)(2) of this section.

        (b) Requirements for Quality Factors, Good Manufacturing Practices,
    and Retention of Records.

              (1) The Secretary shall by regulation establish requirements
            for quality factors for infant formulas to the extent possible
            consistent with current scientific knowledge, including quality
            factor requirements for the nutrients required by subsection
            (i) of this section.

    Labeling requirements, directions for use. 21 CFR  107.20 (2013).

        (c) A ``Use by __'' date, the blank to be filled in with the month
    and year selected by the manufacturer, packer, or distributor of the
    infant formula on the basis of tests or other information showing that
    the infant formula, until that date, under the conditions of handling,
    storage, preparation, and use prescribed by label directions, will: (1)
    when consumed, contain not less than the quantity of each nutrient, as
    set forth on its label; and (2) otherwise be of an acceptable quality
    (e.g., pass through an ordinary bottle nipple).
    U.S. Department of Agriculture
    Poultry Products Inspection Act 21 U.S.C.  451 et seq. (2012)
    Definition of misleading. 21 U.S.C.  453(h) (2012).

        (h) The term ``misbranded'' shall apply to any poultry product
    under one or more of the following circumstances:

              (1) if its labeling is false or misleading in any particular.

    Use of trade names; false or misleading marking or labeling; misleading
    form or size of container. 21 U.S.C.  457 (2012).

        (c) No article subject to this chapter shall be sold or offered for
    sale by any person in commerce, under any name or other marking or
    labeling which is false or misleading, or in any container of a
    misleading form or size, but established trade names and other marking
    and labeling and containers which are not false or misleading and which
    are approved by the Secretary are permitted.

    False or misleading labeling or containers. 9 CFR  381.129 (2013).

        (c) A calendar date may be shown on labeling when declared in
    accordance with the provisions of this paragraph:

              (1) The calendar date shall express the month of the year and
            the day of the month for all products and also the year in the
            case of products hermetically sealed in metal or glass
            containers, dried or frozen products, or any other products
            that the Administrator finds should be labeled with the year
            because the distribution and marketing practices with respect
            to such products may cause a label without a year
            identification to be misleading.
              (2) Immediately adjacent to the calendar date shall be a
            phrase explaining the meaning of such date in terms of
            ``packing'' date, ``sell by'' date, or ``use before'' date,
            with or without a further qualifying phrase, e.g., ``For
            Maximum Freshness'' or ``For Best Quality'', and such phrases
            shall be approved by the Administrator as prescribed in
            381.132.

    Date of packing and date of processing; contents of cans. 9 CFR
    381.126 (2013).

        (a) Either the immediate container or the shipping container of all
    poultry food products shall be plainly and permanently marked by code
    or otherwise with the date of packing. If calendar dating is used, it
    must be accompanied by an explanatory statement, as provided in
    381.129(c)(2).
        (b) The immediate container for dressed poultry shall be marked
    with a lot number which shall be the number of the day of the year on
    which the poultry was slaughtered or a coded number.
        (c) All canned products shall be plainly and permanently marked, by
    code or otherwise, on the containers, with the identity of the contents
    and date of canning, except that canned products packed in glass
    containers are not required to be marked with the date of canning if
    such information appears on the shipping container. If calendar dating
    is used, it must be accompanied by an explanatory statement, as
    provided in  381.129(c)(2).
        (d) If any marking is by code, the inspector in charge shall be
    informed as to its meaning.
    Federal Meat Inspection Act. 21 U.S.C.  601 et seq. (2012)
    Labeling, marking, and container requirements. 21 U.S.C.  607 (2012).

        (e) If the Secretary has reason to believe that any marking or
    labeling or the size or form of any container in use or proposed for
    use with respect to any article subject to this subchapter is false or
    misleading in any particular, he may direct that such use be withheld
    unless the marking, labeling, or container is modified in such manner
    as he may prescribe so that it will not be false or misleading.

    False or misleading labeling or practices generally; specific
    prohibitions and requirements for labels and containers. 9 CFR  317.8
    (2013).

        (32) A calendar date may be shown on labeling when declared in
    accordance with the provisions of this subparagraph:

              (i) The calendar date shall express the month of the year and
            the day of the month for all products and also the year in the
            case of products hermetically sealed in metal or glass
            containers, dried or frozen products, or any other products
            that the Administrator finds should be labeled with the year
            because the distribution and marketing practices with respect
            to such products may cause a label without a year
            identification to be misleading.
              (ii) Immediately adjacent to the calendar date shall be a
            phrase explaining the meaning of such date, in terms of
            ``packing'' date, ``sell by'' date, or ``use before'' date,
            with or without a further qualifying phrase, e.g., ``For
            Maximum Freshness'' or ``For Best Quality'', and such phrases
            shall be approved by the Administrator as prescribed in
            317.4.

    False or misleading labeling or practices generally; specific
    prohibitions and requirements for labels and containers. 9 CFR  317.8
    (2013).

        (a) No product or any of its wrappers, packaging, or other
    containers shall bear any false or misleading marking, label, or other
    labeling and no statement, word, picture, design, or device which
    conveys any false impression or gives any false indication of origin or
    quality or is otherwise false or misleading shall appear in any marking
    or other labeling. No product shall be wholly or partly enclosed in any
    wrapper, packaging, or other container that is so made, formed, or
    filled as to be misleading.

    USDA Labeling Approval (Meat and Poultry). 9 CFR  317.4 (2013).

        (a) No final labeling shall be used on any product unless the
    sketch labeling of such final labeling has been submitted for approval
    to the Food Labeling Division, Regulatory Programs, Food Safety and
    Inspection Service, and approved by such division, accompanied by FSIS
    form, Application for Approval of Labels, Marking, and Devices, except
    for generically approved labeling authorized for use in  317.5(b). The
    management of the official establishment or establishment certified
    under a foreign inspection system, in accordance with part 327 of this
    subchapter, must maintain a copy of all labeling used, along with the
    product formulation and processing procedure, in accordance with part
    320 of this subchapter. Such records shall be made available to any
    duly authorized representative of the Secretary upon request.
        (b) The Food Labeling Division shall permit submission for approval
    of only sketch labeling, as defined in  317.4(d), for all products,
    except as provided in  317.5(b)(2)-(9) and except for temporary use of
    final labeling as prescribed in paragraph (f) of this section.
        (c) All labeling required to be submitted for approval as set forth
    in  317.4(a) shall be submitted in duplicate to the Food Labeling
    Division, Regulatory Programs, Food Safety and Inspection Service, U.S.
    Department of Agriculture, Washington, D.C. 20250. A parent company for
    a corporation may submit only one labeling application (in duplicate
    form) for a product produced in other establishments that are owned by
    the corporation.
        (d) ``Sketch'' labeling is a printer's proof or equivalent which
    clearly shows all labeling features, size, location, and indication of
    final color, as specified in  317.2. FSIS will accept sketches that
    are hand drawn, computer generated or other reasonable facsimiles that
    clearly reflect and project the final version of the labeling.
    Indication of final color may be met by: submission of a color sketch,
    submission of a sketch which indicates by descriptive language the
    final colors, or submission with the sketch of previously approved
    final labeling that indicates the final colors.
        (e) Inserts, tags, liners, pasters, and like devices containing
    printed or graphic matter and for use on, or to be placed within,
    containers and coverings of product shall be submitted for approval in
    the same manner as provided for labeling in  317.4(a), except that
    such devices which contain no reference to product and bear no
    misleading feature shall be used without submission for approval as
    prescribed in  317.5(b)(7).
        (f)(1) Consistent with the requirements of this section, temporary
    approval for the use of a final label or other final labeling that may
    otherwise be deemed deficient in some particular may be granted by the
    Food Labeling Division. Temporary approvals may be granted for a period
    not to exceed 180 calendar days, under the following conditions:

              (i) The proposed labeling would not misrepresent the product;
              (ii) The use of the labeling would not present any potential
            health, safety, or dietary problems to the consumer;
              (iii) Denial of the request would create undue economic
            hardship; and
              (iv) An unfair competitive advantage would not result from
            the granting of the temporary approval.

        (2) Extensions of temporary approvals may also be granted by the
    Food Labeling Division provided that the applicant demonstrates that
    new circumstances, meeting the above criteria, have developed since the
    original temporary approval was granted.
        (g) The inspector-in-charge shall approve meat carcass ink brands
    and meat food product ink and burning brands, which comply with parts
    312 and 316 of this subchapter.
    Egg Products Inspection Act. 21 U.S.C.  1031 et seq. (2012)
    False or misleading or use of nonapproved labeling or containers;
    determination by Secretary; procedures applicable; appeal. 21 U.S.C.
    1036 (2012).

        (b) No labeling or container shall be used for egg products at
    official plants if it is false or misleading or has not been approved
    as required by the regulations of the Secretary. If the Secretary has
    reason to believe that any labeling or the size or form of any
    container in use or proposed for use with respect to egg products at
    any official plant is false or misleading in any particular, he may
    direct that such use be withheld unless the labeling or container is
    modified in such manner as he may prescribe so that it will not be
    false or misleading.
    Perishable Agricultural Commodities Act. 7 U.S.C.  499a et seq. (2012)
    Unfair conduct. 7 U.S.C.  499b (2012).

        (4) For any commission merchant, dealer, or broker to make, for a
    fraudulent purpose, any false or misleading statement in connection
    with any transaction involving any perishable agricultural commodity
    which is received in interstate or foreign commerce by such commission
    merchant, or bought or sold, or contracted to be bought, sold, or
    consigned, in such commerce by such dealer, or the purchase or sale of
    which in such commerce is negotiated by such broker; or to fail or
    refuse truly and correctly to account and make full payment promptly in
    respect of any transaction in any such commodity to the person with
    whom such transaction is had; or to fail, without reasonable cause, to
    perform any specification or duty, express or implied, arising out of
    any undertaking in connection with any such transaction; or to fail to
    maintain the trust as required under section 499e(c) of this title.
    Federal Trade Commission
    Federal Trade Commission Act. 15 U.S.C.  45 et seq. (2012)
    Declaration of unlawfulness; power to prohibit unfair practices;
    inapplicability to foreign trade. 15 U.S.C.  45(a) (2012).

        (1) Unfair methods of competition in or affecting commerce, and
    unfair or deceptive acts or practices in or affecting commerce, are
    hereby declared unlawful.
        (2) The Commission is hereby empowered and directed to prevent
    persons, partnerships, or corporations, except banks, savings and loan
    institutions described in section 57a(f)(3) of this title, Federal
    credit unions described in section 57a(f)(4) of this title, common
    carriers subject to the Acts to regulate commerce, air carriers and
    foreign air carriers subject to part A of subtitle VII of title 49, and
    persons, partnerships, or corporations insofar as they are subject to
    the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et
    seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227
    (b)], from using unfair methods of competition in or affecting commerce
    and unfair or deceptive acts or practices in or affecting commerce.
    Fair Packaging and Labeling Act. 15 U.S.C.  1451 et seq. (2012)
    Scope of additional regulations. 15 U.S.C.  1454 (2012).

        (c) Whenever the promulgating authority determines that regulations
    containing prohibitions or requirements other than those prescribed by
    section 1453 of this title are necessary to prevent the deception of
    consumers or to facilitate value comparisons as to any consumer
    commodity, such authority shall promulgate with respect to that
    commodity regulations effective . . .

                                                             Appendix B: State Requirements in Brief; Supporting Charts for Figures 2 and 3
                                                                                      Supporting Chart for Figure 2
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Date Labels         Foods for Which Date Is                                                      Date Labels         Foods for Which Date Is
             State            No  Requirement        Required                   Required                      State            No  Requirement        Required                   Required
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Alabama                                 X                                                        Nevada                                                      X   Milk; potentially hazardous
    Alaska                                                      X   Shellfish                                                                                         foods
    Arizona                                                     X   Eggs                             New Hampshire                                               X   Cream; pre-wrapped sandwiches
    Arkansas                                                    X   Shellfish                        New Jersey                                                  X   Milk/dairy; shellfish
    California                                                  X   Milk/dairy; shellfish            New Mexico                                                  X   Milk/dairy
    Colorado                                                    X   Eggs                             New York                                X
    Connecticut                                                 X   Milk/dairy                       North Carolina                                              X   Shellfish
    Delaware                                                    X   Shellfish                        North Dakota                                                X   Shellfish
    Florida                                                     X   Shellfish; milk/dairy            Ohio                                                        X   Packaged perishable foods;
                                                                                                                                                                      shellfish
    Georgia                                                     X   Eggs; milk; shellfish;           Oklahoma                                                    X   Eggs; shellfish
                                                                     prepackaged sandwiches
    Hawaii                                                      X   Milk                             Oregon                                                      X   Packaged perishable foods
    Idaho                                   X
    Illinois                                X                                                        Pennsylvania                                                X   Milk/dairy; shellfish
    Indiana                                                     X   Eggs; shellfish                  Rhode Island                                                X   Packaged bakery products;
    Iowa                                                        X   Eggs                                                                                              shellfish
    Kansas                                                      X   Eggs                             South Carolina                                              X   Eggs; shellfish
    Kentucky                                                    X   Milk; shellfish                  South Dakota                            X
    Louisiana                                                   X   Eggs                             Tennessee                               X
    Maine                                                       X   Shellfish                        Texas                                                       X   Shellfish
    Maryland                                                    X   Milk (Grade A)                   Utah                                    X
    Massachusetts                                               X   Packaged perishable or semi-     Vermont                                                     X   Shellfish
                                                                     perishable foods
    Michigan                                                    X   Pre-packaged perishable foods;   Virginia                                                    X   Dairy; shellfish
                                                                     milk/dairy
    Minnesota                                                   X   Eggs; perishable foods;          Washington                                                  X   Packaged perishable foods
                                                                     shellfish
    Mississippi                                                 X   Shellfish                        Washington, D.C.                                            X   Potentially hazardous foods,
                                                                                                                                                                      dairy, meat, poultry, fish,
                                                                                                                                                                      bread products, eggs, cold
                                                                                                                                                                      meats, packaged perishable
                                                                                                                                                                      foods, shellfish etc.
    Missouri                                X                                                        West Virginia                                               X   Eggs
    Montana                                                     X   Milk/Dairy                       Wisconsin                                                   X   Eggs; shellfish
    Nebraska                                X                                                        Wyoming                                                     X   Shellfish
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                      Supporting Chart for Figure 3
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Past-Date Sales   Foods For Which Sale After Date                                                Past-Date Sales   Foods For Which Sale After Date
             State             No Regulation         Regulated               Is Restricted                    State             No Regulation         Regulated               Is Restricted
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Alabama                                                     X   Meat, Class A foods (baby food,  Nevada                                  X                       Potentially hazardous foods
    Alaska                                  X                        infant formula, potentially
                                                                     hazardous foods)
    Arizona                                 X                                                        New Hampshire                           X                       Pre-wrapped sandwiches
    Arkansas                                X                                                        New Jersey                                                  X   Milk
    California                              X                                                        New Mexico                                                  X   Milk/dairy
    Colorado                                X                       Eggs                             New York                                X
    Connecticut                             X                                                        North Carolina                          X
    Delaware                                X                                                        North Dakota                            X
    Florida                                                     X   Shellfish and milk/dairy         Ohio                                    X
    Georgia                                 X                       Eggs, infant formula,            Oklahoma                                X
                                                                     shellfish, milk, potentially
                                                                     hazardous foods, pre-packaged
                                                                     sandwiches
    Hawaii                                  X                                                        Oregon                                                      X   Packaged perishable foods
    Idaho                                   X
    Illinois                                                    X   Eggs                             Pennsylvania                                                X   Milk
    Indiana                                 X                                                        Rhode Island                                                X   Packaged bakery products
    Iowa                                    X
    Kansas                                  X                                                        South Carolina                          X
    Kentucky                                                    X   Milk/milk products               South Dakota                            X
    Louisiana                               X                                                        Tennessee                               X
    Maine                                   X                                                        Texas                                   X
    Maryland                                                    X   Milk                             Utah                                    X
    Massachusetts                                               X   All food products (special       Vermont                                 X
                                                                     focus on perishable and semi-
                                                                     perishable foods)
    Michigan                                                    X   Pre-packaged perishable foods,   Virginia                                                    X   Dairy
                                                                     meat, milk/dairy
    Minnesota                               X                                                        Washington                                                  X   Perishable packaged foods
    Mississippi                             X                                                        Washington, D.C.                                            X   Potentially hazardous foods,
                                                                                                                                                                      dairy, meat, poultry, fish,
                                                                                                                                                                      bread products, eggs, cold
                                                                                                                                                                      meats, packaged perishable
                                                                                                                                                                      foods, etc.
    Missouri                                X                                                        West Virginia                           X
    Montana                                                     X   Milk                             Wisconsin                                                   X   Eggs
    Nebraska                                X                                                        Wyoming                                 X
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                       Appendix C: State Date Labeling Regulations in Full

                                                    Explanation of Qualifications for Applicable Regulations

        This table includes information from all 50 states and the food products for which they regulate date labeling. Though this research is detailed, it
     is not complete and not all food products are covered in the following pages. Some food products that are not included in this appendix are:

         Reduced-oxygen packaged foods, which are regulated in many states.

         Refrigerated, ready-to-eat, potentially hazardous foods

         Infant formula, which already requires a ``use by'' date under Federal law \276\.

         Salvageable merchandise, which could require further labeling information for foods sold after date

         Very specific foods items that are unique to a few states (e.g., fresh-squeezed juices)

          In addition, the legal language included herein is excerpted from the laws and thus may be incomplete in some places.

                                                                      How to Use This Table

         The table is divided into four columns:

              (1)  Column I (Applies to Food Type) specifies the type of food to which the state law applies. ``General'' refers to regulations that
                  are not associated with a specific food but apply to all food types; otherwise the specific food type will be stated.

              (2)  Column II (Purpose of Law) provides broad information about the relevant section of the law as applied to the particular food,
                  specifying whether or not date labeling is required, whether or not sale after the date is restricted (and any exemptions); and whether or
                 not alteration of date labels is permitted, when relevant. The term ``date labels'' is used generally in this column to include all terms,
                 such as ``sell by,'' ``use by,'' ``best before,'' etc., even if the law itself may be more specific

              (3)  Column III (Excerpted Language from the Law) contains excerpts of the exact language from the law or regulation.

              (4)  Column IV (Legal Citation) contains the citation to the relevant section of state law or regulation.

         States with an ``*'' after them have adopted some version of the Open Dating regulation contained in the Uniform Packaging and Labeling
         Regulation in NIST Handbook 130, according to the 2013 edition of the Handbook.277

         States with no current regulations according to the qualifications assessed in this report contain ``--'' under each column.

          ** The information contained herein is current as of August 2013.

                                                                 State Date Labeling Regulations
    --------------------------------------------------------------------------------------------------------------------------------------------------------
     I. Applies To Food
            Type                    II. Purpose of Law                            III. Excerpted Language from the Law                   IV. Legal  Citation
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Alabama
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Definition (date limit)                    (4)(a)(8) ``Date limit'' means all terms reasonably construed to    Ala. Admin. Code r.
                                                                  mean food is not intended to be used or sold after the date limit, or   420-3-22.01
                                                                  that food quality is best before the date limit, and includes but is    (2013).
                                                                  not limited to the terms ``Sell By;'' ``Freeze By;'' ``Sell or Freeze
                                                                  By;'' ``Not to be Sold After;'' ``Best if Used By;'' ``Best if
                                                                  Purchased By,'' ``Expiration;'' or other similar designations.
                          Definition (open-date statement)           (14) Open-date statement. Terms ``Sell By''; ``Freeze By''; ``Sell  Ala. Code  20-1-20
                                                                  or Freeze By''; ``Not to be Sold After''; ``Best if Used By'';          (2013).
                                                                  ``Expiration''; or other terms as defined by rules or regulations; or
                                                                  a date without additional words shall be considered an open-date
                                                                  statement
                          Additional descriptive terms (open-        (1) In addition to the terms listed in  20-1-20 (definitions) for  Ala. Admin. Code r.
                           date statement)                        (14) open date statements, the following list of terms and other        80-1-22-.33
                                                                  terms with similar import, shall also be included and considered as     (2013).
                                                                  open date statements:

                                                                       (a) ``For full fresh flavor use by''
                                                                       (b) ``For best quality purchase and use by date shown''
                                                                       (c) ``Use/freeze by''
                                                                       (d) ``Prepare or freeze by''
                                                                       (e) ``For wholesome great taste, serve before date stamped
                                                                    below''
                                                                       (f) ``Best when purchase by date''
                                                                       (g) ``Best if sold by''
                                                                       (h) ``Best used by''
                                                                       (i) ``Product expiration''
                                                                       (j) ``Expiration date''
                                                                       (k) ``Best by''
                                                                       (l) ``Best before''
                                                                       (m) ``Best when purchase by''
                                                                       (n) ``Use before''
                                                                       (o) ``Use by''
                                                                       (p) ``Full freshness until date shown when stored unopened at 40
                                                                    or below''
                                                                       (q) ``Prepare by''
                                                                       (r) ``Fresh until''
                                                                       (s) ``Use or freeze by''
                                                                       (t) ``Sell or use by''
                                                                       (u) ``Freshness through''
                          Alteration of date labels not              No person shall engage in any of the following activities within    Ala. Code  20-1-27
                           permitted                              this state: . . .                                                       (2013).
                                                                       (3)a. Obscure, remove, or otherwise render illegible any
                                                                    information appearing on beverage labels, packages, or containers
                                                                    related to production information, best before dates, or other
                                                                    disclosure printed on, affixed to, or appearing on the labels,
                                                                    packages, or containers.
                                                                       b. This subdivision shall not apply to any alteration of a
                                                                    beverage label, package, or container made by, or at the direction
                                                                    of, either the owner of the trademark rights to the brand that
                                                                    appears on the beverage label, package, or container or an
                                                                    authorized manufacturer of the beverage.
                                                                       c. This subdivision shall not apply to alcoholic beverages as
                                                                    defined in Section 28-3-1.
                                                                       d. This subdivision shall not apply to any entity, organization,
                                                                    or association, including, but not limited to, a nonprofit or other
                                                                    fund-raising organization that does not operate for a commercial
                                                                    purpose.
                                                                       (4)a. Store or transport any beverage product that bears a
                                                                    labeling that has been obscured, removed, or rendered illegible as
                                                                    described in subdivision (3).
                                                                     b. This subdivision shall not apply to any alteration of a
                                                                  beverage label, package, or container made by, or at the direction
                                                                  of, either the owner of the trademark rights to the brand that
                                                                  appears on the beverage label, package, or container or an authorized
                                                                  manufacturer of the beverage.
    Class A Foods         Definition (class A foods)                 (4) Class A foods. Baby food, infant formula, and potentially       Ala. Code  20-1-20
                                                                  hazardous food.                                                         (2013).
                          Date labeling not required                 Date labeling not required for Class A food products in Alabama     No relevant state
                                                                  (with the exception of infant formula, which is federally               law.
                                                                  regulated).\1\
                          Sale after date not permitted              No person shall engage in any of the following activities within    Ala. Code  20-1-27
                                                                  this state: . . . (2) Sell or offer for sale out-of-date Class A        (2013).
                                                                  foods which include baby food, infant formula, and potentially
                                                                  hazardous food.
                          Alteration of date labels not              (1) Packages of potentially hazardous foods bearing an open date    Ala. Admin. Code r.
                           permitted (potentially hazardous       statement are not to be repacked or relabeled or otherwise altered in   80-1-22-.36
                           foods)                                 a manner that would change the open date statement originally placed    (2013).
                                                                  on the package. It is not permissible to reprocess products by
                                                                  freezing, slicing, grinding, cubing, dicing, marinating, chopping, or
                                                                  other similar methods unless the original open date statement is
                                                                  maintained on the product label.
    Meat Products         Date labeling not required                 Date labeling not required for meat products in Alabama.            No relevant state
                                                                                                                                          law.
                          Sale after date not permitted              (4) It is not permissible to freeze, sell, or offer for sale any    Ala. Admin. Code r.
                                                                  ready-to-eat meat product after the expiration of the open-date         80-1-22-.36
                                                                  statement. It is not permissible to freeze, sell, or offer for sale a   (2013).
                                                                  product having the appearance of a ready-to-eat meat product (e.g.,
                                                                  smoked sausages and smoked hams) after the expiration of the open-
                                                                  date statement unless such product bears labeling to include safe
                                                                  handling statements and proper cooking instructions.
                          Sale after date not permitted--            (3) Any rule in this chapter to the contrary not withstanding,      Ala. Admin. Code r.
                           exemptions                             meat products bearing an open-date statement may be frozen and sold     80-1-22-.36
                                                                  after the original expiration date only if all the following            (2013).
                                                                  stipulations are met:

                                                                       (a) The product is a fresh or raw meat product that is frozen
                                                                    prior to the expiration of the open-date statement.
                                                                       (b) The product is labeled ``Frozen on ___,'' with the month,
                                                                    day, and year the product is frozen in the blank.
                                                                       (c) The original open-date statement is maintained on the
                                                                    product package.
                                                                       (d) If offered for sale at retail, the product is frozen and
                                                                    labeled and sold only to a household consumer by the same
                                                                    establishment that originally offered the product for retail sale.
                                                                       (e) If offered for sale at wholesale (i.e., warehouse,
                                                                    manufacturer, or distributor) the product is frozen and labeled and
                                                                    sold only to the end user (i.e., consumer, restaurant, or hotel).
                                                                    Provided however that consumer ready packages of fresh or raw meat
                                                                    can be sold to retail establishments if all other provisions of
                                                                    this rule are followed and each package is properly labeled.
                                                                       (f) Products frozen before the expiration of the open-date
                                                                    statement may not be thawed or further processed in any manner.
                                                                       (g) All products properly frozen and labeled must also maintain
                                                                    the safe handling labels as mandated through USDA.
                                                                       (h) Products not properly labeled, re-labeled or exempted as set
                                                                    forth in (a) through (h) of this rule shall be deemed date expired
                                                                    and shall be included in the equivalent number utilized to
                                                                    determine the applicable class of violation as determined by Rule
                                                                    No. 80-1-22-.32.
                                                                       (i) Nothing in this paragraph (3) of Rule 80-1-22-.36 shall
                                                                    preclude a manufacturer or wholesaler or retailer from having more
                                                                    stringent requirements for their products. Nothing in this
                                                                    paragraph is intended to negate the agreement between sellers of
                                                                    these products concerning guarantees or credit for expired
                                                                    products.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Alaska
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     (c) In addition to meeting the requirements of (a) and (b) of this  Alaska Admin. Code
                                                                  section, the operator of a food establishment shall obtain . . . (6)    tit. 18,  31.200
                                                                  molluscan shellfish that are . . . packaged and identified as           (2013).
                                                                  follows:

                                                                       (A) fresh or frozen shucked molluscan shellfish packaged in a
                                                                    single-use container with a label that identifies the name,
                                                                    address, and permit number of the shucker-packer or repacker of the
                                                                    molluscan shellfish, and either the sell-by date or the date
                                                                    shucked;
                          Sale after date not restricted         Not restricted for shellfish in Alaska.                                 No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Arizona
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Definition (Expiration date)               13. ``Expiration date'' means the words ``sell by'' or ``buy        Ariz. Rev. Stat.
                                                                  thru'' followed by a date, including the month and day, that is not     Ann.  3-701
                                                                  more than twenty-four days after the eggs were candled and that         (2013).
                                                                  includes the date the eggs were candled.
                          Date labeling required                     E. Cases, half cases, cartons or containers marked grade AA or      Ariz. Rev. Stat.
                                                                  grade A shall be marked with an expiration date.                        Ann.  3-719
                                                                     F. The expiration date marked on a case, half case or container      (2013).
                                                                  holding fifteen dozen eggs or more shall be plainly and conspicuously
                                                                  marked in bold-faced type not less than \3/8\" in height on one
                                                                  outward end of the case or container.
                                                                     G. The expiration date marked on a carton or container holding
                                                                  less than fifteen dozen eggs shall be plainly and conspicuously
                                                                  marked in bold-faced type not less than \1/8\" in height on one end
                                                                  of the outward top face of each carton and on one outward end or the
                                                                  outward top of each container.
                          Sale after date not restricted         Not restricted for eggs in Arizona.                                     No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Arkansas *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     (A) Raw SHUCKED SHELLFISH shall be obtained in nonreturnable        Ark. Code Ann.
                                                                  packages which bear a legible label that identifies the: . . . (2)      007-04-8 3-202.17
                                                                  The ``sell by'' or ``best used by'' date for packages with a capacity   (2013).
                                                                  of less than 1.89 L (\1/2\ gallon) or the date shucked for packages
                                                                  with a capacity of 1.89 L (\1/2\ gallon) or more
                          Sale after date not restricted         Not restricted for shellfish in Arkansas.                               No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           California
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk/Dairy            Date labeling required                     (a) At the time of sale to the consumer . . . there shall appear    Cal. Food & Agric.
                                                                  upon the package or container of such product the date established by   Code  36004
                                                                  the processor as the date upon which, in order to insure quality,       (2013).
                                                                  such product is normally removed from the shelf
                          Date labeling required (scope of law)      (a) Except as otherwise provided in Food and Agricultural Code      Cal. Code Regs.
                                                                  Section 36004(c), the licensed milk products plant which bottles or     tit. III,  627
                                                                  packages the following products shall be responsible for affixing the   (2013).
                                                                  quality assurance date to all containers which are offered for sale
                                                                  to the consumer by a retail store: market milk, market cream, skim or
                                                                  non-fat milk, half and half, sour cream, sour cream dressing, low-fat
                                                                  milk, flavored milk, flavored dairy drink, yogurt, concentrated milk,
                                                                  concentrated skim milk, acidophilus milk, buttermilk and cultured
                                                                  buttermilk, cottage cheese, creamed cottage cheese, homogenized
                                                                  creamed cottage cheese spread, and partially creamed or low-fat
                                                                  cottage cheese.
                                                                     (b) The quality assurance date shall be readily identifiable by
                                                                  the consumer. If a numerical sequence of months and days is used, it
                                                                  may not be located on the container with other numbers such as
                                                                  factory license number or lot numbers unless such other numbers are
                                                                  clearly identified. If the quality assurance date is used with
                                                                  unidentified code numbers, the date shall be at least the first three
                                                                  letters of the month followed by the day of the month.
                          Sale after date not restricted         Not restricted for milk in California.                                  No relevant state
                                                                                                                                          law.
    Shellfish             Date labeling required                     (a) Raw shucked shellfish shall be obtained in nonreturnable        Cal. Health &
                                                                  packages that bear a legible label that identifies . . . a ``sell       Safety Code
                                                                  by'' date or a ``best if used by'' date for packages with a capacity    114039 (2013).
                                                                  of less than \1/2\ gallon, or the date shucked for packages with a
                                                                  capacity of \1/2\ gallon or more.
                          Sale after date not restricted         Not restricted for shellfish in California.                             No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Colorado
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Alteration of date labels not              A. When voluntary code date information appears on a retail food    6 Colo. Code Regs.
                           permitted                              establishment or manufacturers' label, it shall not be concealed or      1010-2:3-701
                                                                  altered.                                                                (2013).
    Eggs                  Date labeling required                     3.2  PACK DATE REQUIREMENTS                                         8 Colo. Code Regs.
                                                                                                                                           1202-10:3.0
                                                                                                                                          (2013).
                                                                       Every case, carton, or container of shell eggs at the time of
                                                                    packing shall have legibly printed thereon, in numerals not less
                                                                    than \1/8\" in height, the date the eggs are first packed, which
                                                                    shall be referred to in these rules as the ``pack date.'' The pack
                                                                    date shall be stated numerically by month and day (e.g., 1/15), or
                                                                    by the numbered consecutive day of the year (e.g., 123, being the
                                                                    123rd consecutive day of the year).
                          Further date labeling optional             3.3  SELL-BY DATE REQUIREMENTS                                      8 Colo. Code Regs.
                           (formatting specified if used)                                                                                  1202-10:3.0
                                                                                                                                          (2013).
                                                                       Every case, carton, or container of shell eggs may, but need not
                                                                    have legibly printed thereon, . . . a date by which the eggs must
                                                                    be sold, which shall be referred to in these rules as the ``sell-by
                                                                    date.'' The sell-by date shall be no more than 30 days after the
                                                                    pack date. It shall be stated by month and day using the three-
                                                                    letter abbreviation of the month followed by the numerical day of
                                                                    the month (e.g., Jan. 15), and preceded by the term SELL BY or EXP.
                          Sale after date not permitted          4.1  No shell eggs may be offered for sale or sold to a consumer or     8 Colo. Code Regs.
                                                                  restaurant more than 45 days after the pack date.                        1202-10:4.0
                                                                                                                                          (2013).
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Connecticut *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk/Dairy            Date labeling required                     Each person, handler, firm or corporation shall clearly mark each   Conn. Gen. Stat.
                                                                  container of milk or milk product, cream, yogurt, cream cheese,         Ann.  22-197b
                                                                  cottage cheese, ricotta cheese, soft cheese, eggnog or sour cream       (2013).
                                                                  offered for retail sale with a last sale date. In accordance with the
                                                                  provisions of chapter 54, the Milk Regulation Board shall adopt
                                                                  regulations establishing standards and criteria for label type size,
                                                                  color and wording that is consistent with national standards and said
                                                                  board may incorporate by reference The Nutritional Education and
                                                                  Labeling Act, 21 CFR 101.
                                                                     (b) Products not manufactured, packaged and heat treated in a       Conn. Agencies
                                                                  manner that makes the product safe to store at room temperature shall   Regs.  22-133-131
                                                                  be conspicuously labeled with a last sale date. The last sale date      (2013).
                                                                  shall be shown in contrasting color with the background. The last
                                                                  sale date shall be expressed as ``sell by'', ``last sale date'' or
                                                                  ``must be sold by''.
                          Alteration of date labels not              (f)                                                                 Conn. Agencies
                           permitted                                                                                                      Regs.  22-133-123
                                                                                                                                          (2013).
                          Sale after date not restricted         Not restricted for milk in Connecticut.                                 No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Delaware
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     (A) Raw shucked shellfish shall be obtained in nonreturnable        4000 Del. Admin.
                                                                  packages which bear: . . . (2) The ``sell by'' date for packages with   Code  3-202.17
                                                                  a capacity of less than 1.87 L (\1/2\ gallon) or the date shucked for   (2013).
                                                                  packages with a capacity of 1.87 L (\1/2\ gallon) or more.
                          Sale after date not restricted         Not restricted for shellfish in Delaware.                               No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Florida
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Definition (terminal sale date)            (65) Terminal sale date--the last day freshly packed shellfish      Fla. Admin. Code
                                                                  shall be offered for sale; that being no more than 14 calendar days     Ann. r. 5L-1.002
                                                                  subsequent to the date the product was shucked, or for oyster           (2013).
                                                                  shellstock harvested from the Gulf of Mexico, no more than 14 days
                                                                  subsequent to the date shellstock was harvested.
                          Date labeling required                     (1) . . . Containers of fresh shellfish, with a capacity of less    Fla. Admin. Code
                                                                  than 64 ounces, shall further clearly and permanently bear the          Ann. r. 5L-1.007
                                                                  terminal sale date, by the numerical month, day, and last digit of      (2013).
                                                                  the year.
                          Sale after date not permitted              (11) It shall be unlawful for any person, firm, corporation,        Fla. Admin. Code
                                                                  wholesale or retail dealer to sell or offer for sale any fresh          Ann. r. 5L-1.007
                                                                  shellfish after the terminal sale date has expired, or sell or offer    (2013).
                                                                  for sale any fresh, frozen, or previously frozen shellfish not in
                                                                  compliance with any and all requirements of Chapter 5L-1, F.A.C.
    Milk/Dairy            Date labeling required                     (1)(a) All milk and milk products shall be legibly labeled with     Fla. Admin. Code
                                                                  their shelf-life date. The date or date code for frozen desserts and    Ann. r. 5D-1.007
                                                                  other manufactured milk products shall be approved by the department    (2013).
                                                                  and shall indicate the date of manufacture of the product or the last
                                                                  day the product is to be offered for sale.
                          Sale after date not permitted              (1)(e) No milk or milk products shall be offered for sale as a      Fla. Admin. Code
                                                                  grade A product after the shelf-life expiration date shown on the       Ann r. 5D-1.007
                                                                  container. All milk and milk products offered for sale after the        (2013).
                                                                  shelf-life expiration date will be deemed to be misbranded and
                                                                  subject to be impounded and made unsalable or otherwise disposed of
                                                                  by the department, under the provisions of Section 502.231, F.S.
                                                                     (1)(f) This rule does not apply to containers of milk or milk
                                                                  products which are not to be sold in the State of Florida.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Georgia
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Definition (expiration date)               (35) ``Expiration Date'' is synonymous with Pull Date, Best-By      Ga. Comp. R. &
                                                                  Date, Best Before Date, Use-By Date, and Sell-By Date; and means the    Regs. 40-7-1-.02
                                                                  last date on which the following FOOD products can be sold at retail    (2013).
                                                                  or wholesale:
                                                                       (a) Prepackaged sandwiches; (b) Eggs, (c) Infant formula,(d)
                                                                    Shucked oysters,(e) Milk, and (f) POTENTIALLY HAZARDOUS FOOD
    Eggs                  Date labeling required                     All eggs that are sold, offered for sale or stored for sale at      Ga. Comp. R. &
                                                                  retail or wholesale shall use an Open Date to express the packing       Regs. 40-3-1.01
                                                                  date or the expiration date . . . (d) Manner of Expressing the          (2013).
                                                                  Expiration Date: An Expiration Date shall be the use of an Open Date
                                                                  (as defined in 40-3-1-.01(b) of these Regulations) preceded by the
                                                                  abbreviation ``Exp.'' [Example: EXP Jun 10] or the use of an Open
                                                                  Date (as defined in 40-3-1-.01(b) of these Regulations) preceded by
                                                                  the term ``Sell By'' [Example: Sell by JUN 10], or ``Not to be Sold
                                                                  After'' [Example: Not to be Sold After JUN 10]; or ``Best Before''
                                                                  [Example: Best Before JUN 10] or words of similar import.
                          Sale after date not permitted              (e) Prohibited Acts: The following acts and the causing thereof     Ga. Comp. R. &
                                                                  are hereby prohibited.                                                  Regs. 40-3-1-.01
                                                                                                                                          (2013).
                                                                       1. Eggs are not to be sold or offered for sale at retail or
                                                                    wholesale after the expiration date.
                                                                       2. Eggs are not to be sold or offered for sale that do not meet
                                                                    the U.S. Standards, Grades, and Weight Classes for Shell Eggs Part
                                                                    56, Subpart C, Paragraphs 56.216 and 56.217 establishedpursuant to
                                                                    the Federal Agricultural Marketing Act of 1946;
                                                                     (2)(c) EGGS cannot be offered or held for sale after the            Ga. Comp. R. &
                                                                  EXPIRATION DATE, according to Departmental Rules Chapter 40-3-1-        Regs. 40-7-1-.2
                                                                  .01(e)1.                                                                (2013).
    Infant formula          Date labeling required                   (2)(a) Infant Formula.\2\                                           Ga. Comp. R. &
                                                                                                                                          Regs. 40-7-1-.26
                                                                                                                                          (2013).
                                                                       1. Each and every container of liquid or powdered infant formula
                                                                    made from two or more ingredients and represented as or intended as
                                                                    a replacement or supplement for milk, shall conspicuously show in
                                                                    common and express terms the calendar month and year after which
                                                                    the product is not to be sold or used for human consumption.
                                                                       2. The expiration date, or the date after which the product is
                                                                    not to be sold or used for human consumption, shall be determined
                                                                    by the manufacturer based on empirical data, or other verifiable
                                                                    scientific means.
                          Sale after date not permitted              (2) Expiration Dates. It shall be unlawful to sell or offer for     Ga. Comp. R. &
                                                                  sale, at retail or wholesale, the following food items past the         Regs. 40-7-1-.26
                                                                  EXPIRATION DATE stated on the label:                                    (2013).
                                                                       (a) Infant Formula.
    Milk                  Date labeling required                     (2) All containers of milk and milk products shall be clearly       Ga. Comp. R. &
                                                                  marked with a Sell By Date with the exception of frozen desserts and    Regs. 40-2-3-.01
                                                                  some shelf stable products where processing codes may be required.      (2013).
                          Sale after date not permitted/             (35) ``Expiration Date'' is synonymous with Pull Date, Best-By      Ga. Comp. R. &
                           Definition (expiration date)           Date, Best Before Date, Use-By Date, and Sell-By Date; and means the    Regs. 40-7-1-.02
                                                                  last date on which the following FOOD products can be sold at retail    (2013).
                                                                  or whole-
                                                                   sale: . . . (e) Milk
    Shellfish             Date labeling required                     (8)(c)(a) Raw and frozen shucked molluscan shellfish shall be       Ga. Comp. R. &
                                                                  obtained in nonreturnable packages legibly bearing . . . the ``sell     Regs. 40-7-1-.10
                                                                  by'' date for packages with a capacity of less than l.87 L (\1/2\       (2013).
                                                                  gallon) or the date shucked for packages with a capacity of l.87 L
                                                                  (\1/2\ gallon) or more.
                          Sale after date not permitted/             (35) ``Expiration Date'' is synonymous with Pull Date, Best-By      Ga. Comp. R. &
                           Definition (expiration date)           Date, Best Before Date, Use-By Date, and Sell-By Date; and means the    Regs. 40-7-1-.02
                                                                  last date on which the following FOOD products can be sold at retail    (2013).
                                                                  or wholesale: . . . (d) Shucked oysters
    Prepackaged           Date labeling required                     (2)(b) Prepackaged Sandwiches.                                      Ga. Comp. R. &
     Sandwiches                                                                                                                           Regs. 40-7-1-.26
                                                                                                                                          (2013).
                                                                       1. Type A . . . (ii) Type A Sandwiches which are stored,
                                                                    transported and offered for sale in a non-refrigerated state shall
                                                                    be labeled with an EXPIRATION DATE not later than two (2) days from
                                                                    the date of manufacture.
                                                                       2. Type B Sandwiches.
                                                                         (i) Type B Sandwiches are those prePACKAGED sandwiches which
                                                                      are handled and sold as refrigerated sandwiches . . . (iii) The
                                                                      EXPIRATION DATE for sandwiches shall state the last day of sale
                                                                      in terms of the month, or its abbreviation, and numerical day of
                                                                      the month (e.g., 6-6). The expiration day shall be preceded by an
                                                                      explanatory term, such as ``Expires'', ``Sell-By'', or similar
                                                                      wording. Other PRODUCT CODES or dating methods are prohibited.
                                                                   3. Type C Sandwiches.
                                                                         (i) Type C Sandwiches are those prePACKAGED sandwiches which
                                                                      are immediately hard frozen after manufacture, [. . .] (iv) The
                                                                      EXPIRATION DATE, as required in Subparagraphs (ii) and (iii) of
                                                                      this section, shall meet the criteria as in 40-7-1-
                                                                      .26(2)(b)2.(iii); and be conspicuously displayed on the front of
                                                                      the wrapper.
                          Sale after date not permitted              (2) Expiration Dates. It shall be unlawful to sell or offer for     Ga. Comp. R. &
                                                                  sale, at retail or wholesale, the following food items past the         Regs. 40-7-1-.26
                                                                  EXPIRATION DATE stated on the label: [. . .] (b) Prepackaged            (2013).
                                                                  Sandwiches. For the purpose of this section, prePACKAGED sandwiches
                                                                  shall be classified as Type A, Type B or Type C.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Hawaii
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk                  Date labeling required                     Every container of processed milk and milk product held in retail   Haw. Code R.  11-
                                                                  and wholesale stores, restaurants, schools, or similar establishments   15-39 (2013).
                                                                  for sale shall be conspicuously and legibly marked by the milk plant
                                                                  with the designation of the month and day of the month after which
                                                                  the milk shall not be sold for human consumption.
                          Sale after date not restricted         Not restricted for milk in Hawaii.                                      No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Idaho
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Illinois
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling optional                     (d) . . . it shall be allowable to include expiration dates in the  Ill. Admin. Code
                                                                  labeling of consumer-size containers at retail. An expiration date,     tit. 8,  65.30
                                                                  or other similar language as specified by USDA standards, that is not   (2013).
                                                                  later than 30 days from the candling date for Grade A eggs and not
                                                                  later than the 15 days from the candling date for Grade AA eggs shall
                                                                  be used.
                          Sale after date not permitted              (d) . . . Eggs with an expiration date marked on the container      Ill. Admin. Code
                                                                  shall not be offered for sale or sold to a consumer after the date      tit. 8,  65.30
                                                                  marked on the container.                                                (2013).
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Indiana
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     Sec. 2. All eggs offered for sale in consumer packages (cases,      370 Ind. Admin.
                                                                  boxes, baskets, or containers):                                         Code 1-3-2 (2013).
                                                                       (1) shall be legibly dated (month and day or consecutive day of
                                                                    the year) the day the eggs were packed;
                                                                       (2) shall bear an expiration date of not more than thirty (30)
                                                                    days from date of pack, excluding date of pack; and
                                                                       (3) may contain a ``BEST BY'', ``BEST IF USED BY'', or ``USE
                                                                    BY'' date in addition to the expiration date, which shall not
                                                                    exceed forty-five (45) days from the date of pack, excluding the
                                                                    date of pack.
                                                                     Shell eggs labeled AA shall bear in distinctly legible form an
                                                                  expiration date of no more than ten (10) days from date of pack
                                                                  excluding date of pack. The expiration date shall be stated as the
                                                                  month and day, for example, April 3 or 4-3, preceded by the letters
                                                                  ``EXP'' or ``SELL BY''. Quality is best if sold by the expiration
                                                                  date.
                          Sale after date not restricted         Not restricted for eggs in Indiana.                                     No relevant state
                                                                                                                                          law.
    Shellfish             Date labeling required                     Sec. 156 (a) Raw shucked shellfish shall be obtained in             410 Ind. Admin.
                                                                  nonreturnable packages that bear a legible label that identifies the    Code 7-24-156
                                                                  . . . ``sell by'' date for packages with a capacity of less than one-   (2013).
                                                                  half (\1/2\) gallon or the date shucked for packages with a capacity
                                                                  of one-half (\1/2\) gallon or more.
                          Sale after date not restricted         Not restricted for shellfish in Indiana.                                No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Iowa
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     (2) Each carton containing eggs for retail sale in Iowa which have  Iowa Admin. Code r.
                                                                  been candled and graded shall be marked with:                           21-36.8 (2013).

                                                                       a. The grade and size of the eggs contained;
                                                                       b. The date the eggs were packed; and
                                                                       c. The name and address of the distributor or packer.
                          Sale after date not restricted         Not restricted for eggs in Iowa.                                        No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Kansas
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     (a) Each container of eggs shall be labeled with the following      Kan. Stat. Ann.  2-
                                                                  information: . . . (6) the expiration date which shall be preceded by   2509 (2013).
                                                                  ``exp,'' ``sell by,'' ``use by'' or similar language.
                          Sale after date not restricted         Not restricted for eggs in Kansas.                                      No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Kentucky
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk/Milk Products    Definition (Open date)                     Section 1. (29) ``Open date'' means the date which shall be         902 Ky. Admin.
                                                                  affixed on a consumer package or container of Grade A pasteurized       Regs. 50:010
                                                                  milk or milk products subsequent to the date of manufacturing,          (2013).
                                                                  processing or packaging and which represents the period of time that
                                                                  the product will remain unspoiled and acceptable for consumption when
                                                                  transported, handled and stored under approved conditions.
                          Date labeling required                     Section 1. Open Date Required. No person shall sell or offer for    902 Ky. Admin.
                                                                  sale any Grade A pasteurized milk or milk product in this state in a    Regs. 50:080
                                                                  consumer package that does not bear the open date as required by this   (2013).
                                                                  administrative regulation.
                          Sale after date not permitted              Section 4. Enforcement. If a product is not sold within the period  902 Ky. Admin.
                                                                  specified in the open date, the cabinet shall take action to remedy     Regs. 50:080
                                                                  the condition consistent with this administrative regulation by         (2013).
                                                                  removing the product from consumer channels and causing the product
                                                                  to be returned to the milk plant of origin for destruction.
    Shellfish             Date labeling required                     Section 9. (4) The certified shellfish dealer shall assure that     902 Ky. Admin.
                                                                  each package containing less than sixty-four (64) fluid ounces of       Regs. 45:020
                                                                  fresh or frozen shellfish shall have:                                   (2013).

                                                                       (b) A ``sell by date'' which provides a reasonable subsequent
                                                                    shelf-life or the words ``Best if used by'' followed by a date if
                                                                    the product would be expected to reach the end of its shelf-life.
                                                                    The date shall consist of the abbreviation for the month and number
                                                                    of the day of the month. For frozen shellfish, the year shall be
                                                                    added to the date.
                          Sale after date not restricted         Not restricted for shellfish in Kentucky.                               No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Louisiana
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     B. Each carton or sleeve shall have on each individual container    La. Admin. Code
                                                                  the following:                                                          tit. 7, pt. V
                                                                                                                                          929 (2013).
                                                                       2. the date when packed;
                          Sale after date not restricted         Not restricted for eggs in Louisiana.                                   No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Maine
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     A. Each individual package containing fresh or fresh frozen         13-188 Me. Code R.
                                                                  shucked shellfish meat shall bear a permanent printed label approved     15.21 (2013).
                                                                  by the Department that is legibly and indelibly marked in accordance
                                                                  with applicable Federal and state regulations to contain, but not be
                                                                  limited to, the following . . .
                                                                     B. The dealer shall also label each individual package containing
                                                                  less than 64 fluid ounces (1873 ml) of fresh or fresh frozen
                                                                  shellfish with the following:

                                                                       1. The words ``SELL BY DATE'' or ``BEST IF USED BY'' followed by
                                                                    a date when the product would be expected to reach the end of its
                                                                    shelf life.
                                                                       2. The date shall consist of the abbreviation for the month and
                                                                    number of the day of the month; and
                                                                       3. For fresh frozen shellfish, the year shall be added to the
                                                                    date.
                          Sale after date not restricted         Not restricted for shellfish in Maine.                                  No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Maryland
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk (Grade A)        Date labeling required                     B. A permittee shall conspicuously and legibly mark the cap or non- Md. Code Regs.
                                                                  glass container of Grade A fluid milk with the words ``Sell by'',       10.15.06.10
                                                                  followed by the designation of the month and the day of the month       (2013).
                                                                  after which the product may not be sold, delivered, or offered for
                                                                  sale.
                          Sale after date not permitted (with        A. Except as provided in  B of this regulation, a person may not   Md. Code Regs.
                           exemptions)                            offer Grade A fluid milk for sale beyond the sell-by date.              10.15.06.11
                                                                     B. The following establishments may use or serve Grade A fluid       (2013).
                                                                  milk up to 4 days beyond the sell-by date:

                                                                       (1) Food service facilities;
                                                                       (2) Hospitals;
                                                                       (3) Schools;
                                                                       (4) Institutions; and
                                                                       (5) Places where milk is consumed on the premises.

                                                                     C. An establishment listed in  B of this regulation shall ensure
                                                                  that Grade A fluid milk is used by the establishment not later than 4
                                                                  days beyond the sell-by date.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Massachusetts
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Definition (best if used by date)          (C) Definitions . . .                                               105 Mass. Code
                                                                                                                                          Regs. 520.119
                                                                                                                                          (2013).
                                                                       Best If Used by Date: A date no later than the expiration of the
                                                                    estimated shelf life of a food product . . .
                          Definition (sell by date)              (C) Definitions . . .                                                   105 Mass. Code
                                                                                                                                          Regs. 520.119
                                                                                                                                          (2013).
                                                                       Sell by Date: A recommended last date of retail sale of a food
                                                                    product which provides for a reasonable subsequent period of home
                                                                    shelf-life.
                          Date label required                        (G)(1) Placement of the Date. A date shall be displayed with the    105 Mass. Code
                                                                  term ``sell by'' or ``best if used by'' in reasonable proximity to      Regs. 520.119
                                                                  the designated date.                                                    (2013).
                                                                     (2) Such a date shall consist of the common abbreviation for the
                                                                  calendar month and numerals for the day and year, e.g., Feb. 10,
                                                                  1980; or numerals for the month, day and year, e.g., 2/10/80, except
                                                                  that:
                                                                        (a) Perishable food products need not have the year
                                                                     identification included in the date, and frozen and long shelf
                                                                     life foods need not have the day identification included in the
                                                                     date.
                                                                        (b) Fresh bakery products may be dated with only the day
                                                                     designation, e.g., Monday, or an abbreviation thereof, e.g., Mon.

                                                                       (3) A date shall be accompanied by disclosure of recommended
                                                                    product storage conditions, if such conditions significantly affect
                                                                    the validity of such a date.
                                                                       (4) A date and any recommended storage conditions shall be
                                                                    printed, stamped, embossed, perforated, or otherwise shown on the
                                                                    retail package, a label on such package, or a tag attached to such
                                                                    package in a manner that is easily readable and separate from other
                                                                    information, graphics, or lettering so as to be clearly visible to
                                                                    a prospective purchaser.
                                                                       (5) If a date and recommended storage conditions do not appear
                                                                    on the principal display panel, the information panel, or on
                                                                    another conspicuous portion of the individual retail package, a
                                                                    statement must appear on the principal display or information panel
                                                                    indicating where such information can be found elsewhere on the
                                                                    package.
                                                                       (6) An individual prepackaged food product which is not labeled
                                                                    in accordance with the provisions of 105 CMR 520.119 shall be
                                                                    deemed ``mis-branded'' pursuant to M.G.L. c. 94,  187.
                          Sale after date not permitted              (F) Sale of Past Date Food Products. No person shall offer for      105 Mass. Code
                                                                  sale in the Commonwealth any food product after the expiration of a     Regs. 520.119
                                                                  ``sell by date'' or a ``best if used by date'' unless:                  (2013).
                                                                       (1) It is wholesome and its sensory physical qualities have not
                                                                    significantly diminished; and,
                                                                       (2) It is segregated from food products which are not ``past
                                                                    date''; and,
                                                                       (3) It is clearly and conspicuously marked either on the package
                                                                    or through the use of shelf markers or placecards, as being offered
                                                                    for sale after the recommended last date of sale or best use.
                                                                     (K)(1) Exemptions
                                                                 105 CMR 520.101 through 520.205 do not apply to:
                                                                       (a) Fresh meat, fresh poultry, fresh fish, fresh fruits, and
                                                                    fresh vegetables offered for sale unpackaged or in a container
                                                                    permitting sensory examination.
                                                                       (b) Salt and crystallized refined sugar.
                                                                       (c) Food products shipped in bulk form for use solely in the
                                                                    manufacture of other foods and not for distribution to the consumer
                                                                    in such bulk form or container.
                                                                       (d) Individually packaged food products which are prepackaged as
                                                                    components of a larger food item, if the larger food item is
                                                                    identified with a date no later than the corresponding date for any
                                                                    such components.
                                                                       (e) Food products prepackaged for retail sale with a net weight
                                                                    of less than 1\1/2\ ounces.
                                                                       (f) Food products manufactured for sale outside the
                                                                    Commonwealth, processed for sale outside the Commonwealth, or
                                                                    stored for sale outside the Commonwealth.
    Packaged Perishable   Date labeling required                     (D) Open Dating of Perishable and Semi Perishable Food Products     105 Mass. Code
     or Semi-Perishable                                              No person shall sell, offer for sale, or have in his possession      Regs. 520.119
     Foods                                                        with intent to sell, prepackaged perishable or semi-perishable food     (2013).
                                                                  products unless they are identified with a ``sell-by-date'' or a
                                                                  ``best if used by date'' determined by the manufacturer, processor,
                                                                  packer, repacker, retailer, or other person who had packaged such
                                                                  food products and displayed in the form specified in 105 CMR 520.119
                          Sale after date not permitted              (F) Sale of Past Date Food Products. No person shall offer for      105 Mass. Code
                                                                  sale in the Commonwealth any food product after the expiration of a     Regs. 520.119
                                                                  ``sell by date'' or a ``best if used by date'' unless:                  (2013).
                                                                       (1) It is wholesome and its sensory physical qualities have not
                                                                    significantly diminished; and,
                                                                       (2) It is segregated from food products which are not ``past
                                                                    date''; and,
                                                                       (3) It is clearly and conspicuously marked either on the package
                                                                    or through the use of shelf markers or placecards, as being offered
                                                                    for sale after the recommended last date of sale or best use.
                                                                     (K1)(1) Exemptions
                                                                     105 CMR 520.101 through 520.205 do not apply to:
                                                                       (a) Fresh meat, fresh poultry, fresh fish, fresh fruits, and
                                                                    fresh vegetables offered for sale unpackaged or in a container
                                                                    permitting sensory examination.
                                                                       (b) Salt and crystallized refined sugar.
                                                                       (c) Food products shipped in bulk form for use solely in the
                                                                    manufacture of other foods and not for distribution to the consumer
                                                                    in such bulk form or container.
                                                                       (d) Individually packaged food products which are prepackaged as
                                                                    components of a larger food item, if the larger food item is
                                                                    identified with a date no later than the corresponding date for any
                                                                    such components.
                                                                       (e) Food products prepackaged for retail sale with a net weight
                                                                    of less than 1\1/2\ ounces.
                                                                       (f) Food products manufactured for sale outside the
                                                                    Commonwealth, processed for sale outside the Commonwealth, or
                                                                    stored for sale outside the Commonwealth.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Michigan *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Definition (date)                          (a) ``Date'' means one of the following:                            Mich. Comp. Laws
                                                                                                                                          Ann.  289.8107
                                                                                                                                          (2013).
                                                                       (i) For perishable food, the recommended last day of sale.
                                                                       (ii) For nonperishable food, the recommended last day of sale or
                                                                    consumption, if any.
    Prepackaged           Date labeling required                     (2) A retail food establishment shall not sell or offer for sale a  Mich. Comp. Laws
     Perishable Foods                                             prepackaged perishable food unless the package bears a label with a     Ann.  289.8107
                                                                  date identified by month and day, except that bakery products with a    (2013).
                                                                  shelf life of 7 days or less may be dated with a day of the week or
                                                                  an abbreviation. A retail food establishment may sell or offer for
                                                                  sale a prepackaged nonperishable food with or without a label that
                                                                  bears a date.
                          Date labeling required                     (b)(c)(3) The date for prepackaged perishable food may be           Mich. Comp. Laws
                                                                  displayed with or without explanatory terms. If explanatory terms are   Ann.  289.8107
                                                                  used, the terms shall be limited to one of the following: ``Sell by     (2013).
                                                                  __'', ``Sell before __'', ``Last date of sale __'', ``Recommended
                                                                  last date of sale __'', or ``Recommended sale date __''. Other
                                                                  meaningful terms may be used if specifically approved by the
                                                                  department.
                          Sale after date not permitted              (b)(c)(4) . . . A retail food establishment shall not sell or       Mich. Comp. Laws
                                                                  offer for sale any of the following foods under the following           Ann.  289.8107
                                                                  circumstances . . . (b) After the date, nonperishable food or           (2013).
                                                                  prepackaged perishable food unless the food is wholesome and sound
                                                                  and is clearly identified as having passed the date. (c)
                                                                  Nonperishable food that is no longer wholesome or sound.
    Milk/Dairy            Date labeling required                     Sec. 69(1) Each processor and manufacturer of milk and milk         Mich. Comp. Laws
                                                                  products sold in this state shall place on each container of milk and   Ann.  288.539
                                                                  milk products a recommended last day of sale by month and date.         (2013).
                                                                     (2) The sell-by date shall be expressed by the first three letters
                                                                  of the month followed by the numeral designating the appropriate
                                                                  calendar day or by expressing the calendar month numerically followed
                                                                  by a numeral designating the calendar day.
                                                                     (3) The sell-by date shall appear on that part of the container
                                                                  that is most likely to be displayed, presented, or shown under
                                                                  customary display conditions of sale. However, a cup container may
                                                                  have the sell-by date placed on the bottom.
                          Sale after date not permitted (with        Sec. 69(9) Milk and milk products shall not be offered for sale     Mich. Comp. Laws
                           exemptions)                            after the sell-by date unless they are advertised to the final          Ann.  288.539
                                                                  consumer in a prominent manner as being beyond the recommended last     (2013).
                                                                  day of sale.
    Meat                  Date labeling not required             Not required for meat in Michigan.                                      No relevant state
                                                                                                                                          law.
                          Sale after date not permitted (with        (4) A retail food establishment shall not sell or offer for sale    Mich. Comp. Laws
                           exemptions)                            any of the following foods under the following circumstances:           Ann.  289.8107
                                                                                                                                          (2013).
                                                                       (a) After the date, meat that has been removed from a federally
                                                                    inspected retail package.

                                                                         (9) If the date is the recommended last day of sale, the date
                                                                      shall be calculated to allow areasonable period for the
                                                                      subsequent consumption of the food, but shall not allow for a
                                                                      periodwhich would result in a health nuisance as described in
                                                                      section 2107.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Minnesota
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Definition (open date; quality             Subp. 7. Open date. ``Open date'' means a date consisting of the    Minn. R. 1550.1040
                           assurance date)                        name or abbreviation or numerical designation for the month, the        (2013).
                                                                  numerical designation for the day of the month, and the name or
                                                                  abbreviation for the day of the week as provided herein, and if
                                                                  appropriate, the year. An open date may be one of the following:

                                                                       A. Date of manufacture: the date the product was manufactured or
                                                                    processed. This date would be used with a statement such as ``Use
                                                                    within 40 days of date shown'' or other similar phrasing.
                                                                       B. Date of packaging: the date the product was placed in the
                                                                    retail package in advance of sale. This date would be used with a
                                                                    statement such as ``Use within 30 days of date shown'' or other
                                                                    similar phrasing.
                                                                       C. Pull date: the recommended last date for retail sale. With
                                                                    this date use a statement such as ``Not to be sold after date
                                                                    shown'' or ``Do not sell after date shown'' or ``Last day of sale''
                                                                    or some equivalent phrasing.
                                                                       D. Freshness date (quality assurance date): of the last date
                                                                    which the manufacturer or processor estimates the product will
                                                                    retain its original freshness or peak quality. With this date use a
                                                                    statement such as ``For maximum freshness use before date shown''
                                                                    or other equivalent phrasing.
                                                                       E. Expiration date: the last date the product can be expected to
                                                                    perform in a manner equal to consumer expectations. With this date
                                                                    use a statement such as ``For best results use before the date
                                                                    shown'' or other equivalent phrasing.
                                                                       F. Shelf display date: the date used by a retailer to indicate
                                                                    when an item was put on display.
                                                                   The purpose of this date, if used, is to aid in the proper rotation
                                                                  of stock and it would be used by the retailer on those perishable
                                                                  foods which have short shelf life and which are exempt herein from
                                                                  open dating.
                                                                     Subp. 8. Quality assurance date. ``Quality assurance date'' means
                                                                  any date after which the manufacturer or processor reasonably
                                                                  determines that the product may, by spoilage, wiltage, drying, or any
                                                                  other foreseeable and natural phenomenon, lose its palatability or
                                                                  its desired or nutritive properties. As used in these parts,
                                                                  ``quality assurance date'' signifies a period of time beginning with
                                                                  the date of manufacture or the date when the food is packed for
                                                                  retail sale and ending with an open date as defined and explained in
                                                                  subpart 7.
                          State preemption of local rules            No subordinate unit of government may adopt or enforce any rule or  Minn. Stat.
                                                                  ordinance regarding open dating of perishable foods other than          31.786 (2013).
                                                                  sections 31.781 to 31.789.
    Eggs                  Date labeling required                     Subpart 1. Pack date. Consumer grades of eggs must be pack dated    Minn. R. 1520.1900
                                                                  in type not smaller than \1/4\" capitals to indicate the date of        (2013).
                                                                  pack. All cartons and cases must bear a pack date. Retailers who
                                                                  carton eggs delivered in bulk cases must label the cartons with the
                                                                  identical pack date on the bulk case.
                                                                     Subp. 2. Quality assurance date. All consumer grade eggs must
                                                                  carry a ``quality assurance date'' in addition to the pack date. The
                                                                  pack date must be a Julian date to not confuse it with the quality
                                                                  assurance date. The quality assurance date must be spelled out as the
                                                                  month or number of the month and day, for example, ``2-1'' or ``Feb.
                                                                  1.'' The quality assurance date must have an explanatory clause, such
                                                                  as ``Sell by'' or ``Use by,'' the word ``Expires,'' or the
                                                                  abbreviation ``Exp.''
                          Sale after date not restricted             Nothing contained in sections 31.781 to 31.789 or any rule adopted  Minn. Stat.
                                                                  pursuant hereto shall require the removal from sale of a perishable     31.784 (2013).
                                                                  food product after the expiration of the quality assurance date on
                                                                  the product nor imply that after the expiration of the quality
                                                                  assurance date on the product, the product is not wholesome or safe
                                                                  for human consumption.
    Perishable Foods      Definition (perishable food)               Subd. 3. ``Perishable food'' means any food intended for human      Minn. Stat.
                                                                  consumption (other than meat and poultry, frozen food, or fresh fruit   31.782 (2013).
                                                                  or vegetables), which has a quality assurance date.
                          Date labeling required                     Every manufacturer or processor of perishable food, except meat,    Minn. R. 1550.1060
                                                                  poultry, frozen food, and fresh fruits and vegetables, as exempt by     (2013).
                                                                  Minnesota Statutes, section 31.782, subdivision 3, and except as
                                                                  provided for herein, shall place on the package or label or labeling
                                                                  of such perishable food an open date as described and provided for in
                                                                  parts 1550.1030 to 1550.1250.
                          Date labeling required (exemptions)        Perishable foods having quality assurance dates of more than 90     Minn. R. 1550.1160
                                                                  days need not bear open dates.                                          (2013).
                          Sale after date not restricted             Nothing contained in sections 31.781 to 31.789 or any rule adopted  Minn. Stat.
                                                                  pursuant hereto shall require the removal from sale of a perishable     31.784 (2013).
                                                                  food product after the expiration of the quality assurance date on
                                                                  the product nor imply that after the expiration of the quality
                                                                  assurance date on the product, the product is not wholesome or safe
                                                                  for human consumption.
    Shellfish             Date labeling required                     A. Raw shucked shellfish shall be obtained in nonreturnable         Minn. R. 4626.0200
                                                                  packages that bear a legible label that identifies:                     (2013).
                                                                       (2) the ``sell by'' date for packages with a capacity of less
                                                                    than 1.87 liter (\1/2\ gallon) orthe date shucked for packages with
                                                                    a capacity of 1.87 liter (\1/2\ gallon) or more.
                          Sale after date not restricted             Nothing contained in sections 31.781 to 31.789 or any rule adopted  Minn. Stat.
                                                                  pursuant hereto shall require the removal from sale of a perishable     31.784 (2013).
                                                                  food product after the expiration of the quality assurance date on
                                                                  the product nor imply that after the expiration of the quality
                                                                  assurance date on the product, the product is not wholesome or safe
                                                                  for human consumption.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Mississippi
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     100.06  On packages containing sixty-four (64) fluid ounces or      43-46 Miss. Code R.
                                                                  more shall have on the lid and sidewall or bottom the ``DATE             17 (LexisNexis
                                                                  SHUCKED'' indicated as the number of the day, month and year or the     2013).
                                                                  month, day and year.
                                                                     100.07  On packages of less than sixty-four (64) fluid ounces of
                                                                  fresh product labeled with the wording ``SELL BY'' followed by a date
                                                                  expressed as a month, day and year, not to exceed seventeen (17) days
                                                                  from the date shucked.
                          Sale after date not restricted         Not restricted for shellfish in Mississippi.                            No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Missouri
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Montana
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk (Grade A)        Definition (pasteurized date)              (1)(d) ``Pasteurized date'' is the same date a unit of milk         Mont. Admin. R.
                                                                  completes pasteurization.                                               32.8.101 (2013).
                          Definition (``sell-by'' date)              (e) A ``sell-by'' date is defined as the 12th consecutive day,      Mont. Admin. R.
                                                                  never to exceed 288 hours, following pasteurization of a unit of        32.8.101 (2013).
                                                                  milk.
                          Date labeling required                     (1) Each container into which grade A pasteurized milk is placed    Mont. Admin. R.
                                                                  for sale for public consumption must be marked with a pasteurized       32.8.203 (2013).
                                                                  date and a sell-by date.
                                                                       (a) The sell-by and pasteurized date will be displayed in Arabic
                                                                    numerals or standard abbreviations for day and month, which shows
                                                                    the last day the milk may be sold as requiredby ARM 32.8.202.
                          Sale after date not permitted              (1) When 12 days or more have passed following pasteurization of a  Mont. Admin. R.
                                                                  unit of grade A milk, there will be no quantities of that unit of       32.8.202 (2013).
                                                                  milk sold or otherwise offered for public consumption.
                                                                     (2) No grade A pasteurized milk may be put in any container marked
                                                                  with a sell-by date which is more than 12 days after pasteurization
                                                                  of the milk for sale in Montana.
                                                                     (3) Unless otherwise agreed upon, the person who offers the milk
                                                                  for sale to the public is responsible for removing the milk at or
                                                                  before the expiration of the 12 days.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Nebraska
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Nevada *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk                  Date labeling required                     1. At the time of sale to the consumer by a retail store of any     Nev. Admin. Code
                                                                  milk or milk product, there must appear upon the package or container   584.4321 (2012).
                                                                  of the product the date established by the processor as the date on
                                                                  which, in order to ensure quality, the product is to be removed from
                                                                  the shelf or similar location or vehicle from which the product is
                                                                  offered for sale to the consumer. This section does not apply to any
                                                                  bulk milk shipments of milk or milk products between distributors.
                          Date labeling required                     2. The date respecting assurance of quality must appear at the top  Nev. Admin. Code
                                                                  of the carton or package and must be indelible and in a contrasting     584.4321 (2012).
                                                                  color to the carton or package in the area where the date is affixed.
                                                                  The date respecting assurance of quality must be the first three
                                                                  letters of the month followed by the day of the month. The date must
                                                                  be of a size commensurate with the size of the container and the
                                                                  location on the container, but in no case may the letters be less
                                                                  than \3/16\" in height.
                          Sale after date not restricted         Not restricted for milk in Nevada.                                      No relevant state
                                                                                                                                          law.
    Potentially           Definition (potentially hazardous          1. ``Potentially hazardous food'' means:                            Nev. Admin. Code
     Hazardous Foods       foods)                                                                                                         446.025 (2012).
                                                                       (a) Food that consists, in whole or in part, of milk, products
                                                                    made from milk, eggs, meat, poultry, fish, shellfish, edible
                                                                    crustacea or other ingredients in a form capable of supporting the
                                                                    rapid and progressive growth of infectious or toxigenic
                                                                    microorganisms.
                                                                       (b) Cereals, fruits, vegetables and dairy products, such as
                                                                    cooked rice, eggs, other than powdered eggs, baked or boiled
                                                                    potatoes, moist soy protein products, any mixture that includes
                                                                    garlic in oil, melons that have been cut, sliced or otherwise
                                                                    breached, whipped butter, products of margarine that contain butter
                                                                    or raw seed sprouts, that have been declared by the health
                                                                    authority to be potentially hazardous.

                                                                     2. The term does not include foods which have a pH level of 4.1 or
                                                                  below or a value of water activity of 0.85 or less.
                          Date labeling required                     4. Potentially hazardous foods which have been prepared by another  Nev. Admin. Code
                                                                  food establishment or food processing plant to be ready to eat and      446.145 (2012).
                                                                  packaged in a container for refrigeration must be marked by the
                                                                  manufacturer to indicate the date by which the food must be sold,
                                                                  served or frozen
                          Sale after date not permitted              4. These foods must be discarded if not sold, served or frozen:     Nev. Admin. Code
                                                                                                                                          446.145 (2012).
                                                                       (a) Within 10 calendar days after the original container is       Nev. Admin. Code
                                                                    opened; or                                                            446.145 (2012).
                                                                       (b) On or before the date by which the food must be sold or
                                                                    used, as indicated on the container, whichever occurs first.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          New Hampshire
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Cream                 Date labeling required                     II. All retail containers of cream sold or offered for sale shall   N.H. Rev. Stat Ann.
                                                                  be conspicuously marked with the date of the last day on which it may    184:30-g (2013).
                                                                  be sold or offered for sale with a reasonable expectation that the
                                                                  cream will not be sour, as determined by the manufacturer.
                          Sale after date not restricted         Not restricted for cream in New Hampshire.                              No relevant state
                                                                                                                                          law.
    Prewrapped            Definition (expiration date)               (a) ``Expiration date'' means the last day of sale, printed or      N.H. Code Admin. R.
     Sandwiches                                                   stamped on a pre-wrapped sandwich label, determined in accordance       Agr. 1412.03
                                                                  with these rules.                                                       (2013).
                          Date labeling required                     (c) The expiration date for a fresh refrigerated pre-wrapped        N.H. Code Admin. R.
                                                                  sandwich shall be clearly and legibly printed or stamped by the         Agr. 1412.04
                                                                  vendor on the sandwich wrapper label, at the time it is wrapped, by     (2013).
                                                                  stating ``expiration date'' or ``sell by'' followed by the month and
                                                                  day.
                                                                     (d) The expiration date for a previously frozen pre-wrapped
                                                                  sandwich shall be clearly and conspicuously printed or stamped on the
                                                                  sandwich wrapper label, at the time it is thawed for retail sale, by
                                                                  stating ``expiration date'' or ``sell by'' followed by the month and
                                                                  day.
                                                                     (e) The expiration date for a fresh refrigerated pre-wrapped
                                                                  sandwich shall be determined by the vendor who makes the pre-wrapped
                                                                  sandwiches.
                          Sale after date not permitted              The purpose of these rules is to protect public health and safety   N.H. Code Admin. R.
                                                                  by establishing an expiration date on all sandwiches beyond which       Agr. 1412.01
                                                                  each sandwich shall not be sold. These rules implement the procedures   (2013).
                                                                  of the department of agriculture, markets, and food pursuant to RSA
                                                                  438:26-b, dating pre-wrapped sandwiches.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           New Jersey
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk/Dairy            Date labeling required                     Containers of milk, certified milk, Vitamin D milk, homogenized     N.J. Stat. Ann.
                                                                  milk, low fat milk, protein fortified low fat milk, skim milk,          24:10-57.23
                                                                  protein fortified skim milk, nonfat milk, protein fortified nonfat      (2013).
                                                                  milk, flavored milks and dairy drinks, buttermilk, cultured
                                                                  buttermilk, yogurt, eggnog, creams, half-and-half and all other fluid
                                                                  milk products designated by the department shall be marked with the
                                                                  name and address of the processor or the pasteurizing plant number as
                                                                  assigned by the department or the state of origin and the name and
                                                                  address of the distributor. All containers of fluid milk products,
                                                                  including those mentioned above, intended for sale to consumers,
                                                                  (except for those products which are sterilized and packaged in
                                                                  hermetically sealed containers), shall be marked with a legend ``NOT
                                                                  TO BE SOLD AFTER'', or ``SELL BY'', or any other clearly
                                                                  understandable legend approved by the department, followed or
                                                                  accompanied by the first three letters of the month where possible .
                                                                  . . If two letters are used the letters MR shall mean MARCH and MY
                                                                  shall mean MAY; JN shall mean JUNE and JL shall mean JULY.
                          Sale after date not permitted              No fluid milk product listed in this section shall be sold or       N.J. Stat. Ann.
                                                                  offered for sale after 11:59 p.m. of the date appearing on the          24:10-57.23
                                                                  containers so marked.                                                   (2013).
                                                                     (d) No milk product referred to in this regulation shall be sold    N.J. Admin. Code
                                                                  or offered for sale after 11:59 p.m. of the date appearing on the       8:21-10.20 (2013).
                                                                  package or container. Products delivered prior to the ``shelf-life
                                                                  expiration date'' may be consumed on the premises beyond the date
                                                                  appearing thereon.
    Shellfish             Date labeling required                     (n)(1) Raw shucked shellfish, packaging and identification          N.J. Admin. Code
                                                                  requirements include the following: . . .                               8:24-3.2 (2013).
                                                                       ii. The ``sell by'' date for packages with a capacity of less
                                                                    than \1/2\ gallon or the dateshucked for packages with a capacity
                                                                    of \1/2\ gallon or more.
                          Sale after date not restricted         Not restricted for shellfish in New Jersey.                             No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           New Mexico
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk/Dairy            Definition (pull date)                     E. ``Pull date'' means the last day on which a product is to be     N.M. Code R.
                                                                  sold or offered for sale for human consumption.                         21.34.5.7 (2013).
                          Date labeling required                     A. In addition to other labeling requirements, except as otherwise  N.M. Code R.
                                                                  exempted in this rule, all processors and producer distributors shall   21.34.5.9 (2013).
                                                                  label each container of one-half (\1/2\) pint or larger of milk, low-
                                                                  fat milk, non-fat milk, flavored milk, skim milk, half and half and
                                                                  creams sold or offered for sale with a legible pull date.
                                                                     B. The length of pull date for pasteurized products shall be
                                                                  determined by the processor.
                                                                     C. The length of pull date for raw products shall not exceed five
                                                                  (5) days including the date of packaging.
                          Sale after date not permitted              Dairy products required to be labeled with a pull date and those    N.M. Code R.
                                                                  dairy products labeled with an optional pull date, except frozen,       21.34.5.16 (2013).
                                                                  dried, condensed or evaporated products, may not be sold or offered
                                                                  for sale for human consumption by any person after the pull date.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            New York
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         North Carolina
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Alteration of date labels not              A food shall be deemed to be misbranded: . . .                      N.C. Gen. Stat.
                           permitted                                                                                                      Ann.  106-130
                                                                                                                                          (2013).
                                                                       (15) If the labeling provided by the manufacturer, packer,
                                                                    distributor, or retailer on meat, meat products, poultry, or
                                                                    seafood includes a ``sell-by'' date or other indicator of a last
                                                                    recommended day of sale, and the date has been removed, obscured,
                                                                    or altered by any person other than the customer. This subdivision
                                                                    does not prohibit the removal of a label for the purpose of
                                                                    repackaging and relabeling a food item so long as the new package
                                                                    or new label does not bear a ``sell-by'' date or other indicator of
                                                                    a last recommended day of sale later than the original package.
                                                                    This subdivision does not prohibit relabeling of meat, meat
                                                                    products, poultry, or seafood that has had its shelf life extended
                                                                    through freezing, cooking, or other additional processing that
                                                                    extends the shelf life of the product.
    Shellfish             Definition (sell by date)                  (26) ``SELL BY date'' means a date conspicuously placed on a        15A N.C. Admin.
                                                                  container or tag by which a consumer is informed of the latest date     Code 18A.0301
                                                                  the product will remain suitable for sale.                              (2013).
                          Date labeling required                     (c) Any container of shucked shellfish which has a capacity of 64   15A N.C. Admin.
                                                                  fluid ounces or more shall be dated as of the date shucked on both      Code 18A.0614
                                                                  the lid and sidewall or bottom. Any container of shucked shellfish      (2013).
                                                                  which has a capacity of less than 64 fluid ounces shall indicate a
                                                                  SELL BY date.
                          Sale after date not restricted         Not restricted for shellfish in North Carolina.                         No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          North Dakota
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     1. Raw shucked shellfish shall be obtained in nonreturnable         N.D. Admin. Code 33-
                                                                  packages which bear a legible label that identifies . . .               33-04-03.1 (2013).

                                                                       (b) The sell by date for packages with a capacity of less than
                                                                    1.87 L (\1/2\ gallon) or the date shucked for packages with a
                                                                    capacity of 1.87 L (\1/2\ gallon) or more.
                          Sale after date not restricted         Not restricted for shellfish in North Dakota.                           No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Ohio
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               State preemption of local rules            (C) To ensure that a uniform system of determining the useful       Ohio Rev. Code Ann.
                                                                  product life of perishable food products for sale within the state is    3715.171 (2013).
                                                                  established, persons complying with this section and the rules
                                                                  established pursuant thereto are exempt from any local ordinances or
                                                                  rules pertaining to the quality assurance period of food products or
                                                                  the manner in which the quality assurance period and perishability of
                                                                  food products are to be disclosed.
                          Definition (quality assurance period)      ``Quality assurance period'' means the period of time following     Ohio Rev. Code Ann.
                                                                  the completion of normal manufacturing, processing, and packaging        3715.171 (2013).
                                                                  procedures during which a food product subjected to normal conditions
                                                                  of exposure will maintain conformity with all of the characteristics
                                                                  normally associated with the food product and will provide the
                                                                  benefits for which the food product is normally purchased. Food
                                                                  product characteristics include, but are not limited to, taste,
                                                                  texture, smell, nutritional value, and reaction value with other food
                                                                  products if used as an ingredient with other food products.
                          Definition (sale date)                     ``Sale date'' means the date by which the manufacturer, processor,  Ohio Rev. Code Ann.
                                                                  or packager of a packaged food product recommends that the food          3715.171 (2013).
                                                                  product be sold for consumption based on the food product's quality
                                                                  assurance period.
    Packaged Perishable   Date labeling required                     (A) Except as provided in division (B) of this section, no person   Ohio Rev. Code Ann.
     Foods                                                        shall knowingly sell or offer to sell in this state any packaged         3715.171 (2013).
                                                                  perishable food product that has a quality assurance period of thirty
                                                                  days or less, unless the package is clearly marked by the packager
                                                                  with its sale date. The sale date shall be legible and understandable
                                                                  to the consumer. The director of agriculture shall make rules in
                                                                  accordance with Chapter 119. of the Revised Code establishing the
                                                                  manner in which the sale date shall be affixed to food products.
                                                                     (B) The provisions of this section do not apply to fresh fruits
                                                                  and vegetables or to meat, including poultry, whether packaged or
                                                                  unpackaged, nor do they apply to packaged perishable food products
                                                                  when sold or offered for sale at any place of business where less
                                                                  than one hundred thousand dollars of all products were sold during
                                                                  the preceding year.
                          Sale after date not restricted         Not restricted for packaged perishable foods in Ohio.                   No relevant state
                                                                                                                                          law.
    Shellfish             Date labeling required                     (F)(iii)(d) The dealer shall assure that each package containing    Ohio Admin. Code
                                                                  less than sixty-four fluid ounces of fresh or frozen shellfish shall    901:3-8-03 (2013).
                                                                  have: . . .

                                                                       (ii) A ``Sell by date'' which provides a reasonable subsequent
                                                                    shelf-life or the words ``Best if used by'' followed by a date when
                                                                    the product would be expected to reach the end of its shelf-life.
                                                                    The date shall consist of the abbreviation for the month and number
                                                                    of the day of the month. For frozen shellfish, the year will be
                                                                    added to the date.
                          Sale after date not restricted         Not restricted for shellfish in Ohio.                                   No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Oklahoma *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     B. An expiration date shall be used on the container, the date      Okla. Stat. tit. 2,
                                                                  shall be preceded by ``EXP'', ``sell by'', or ``use through''.           10-72 (2013).
                          Sale after date not restricted         Not restricted for eggs in Oklahoma.                                    No relevant state
                                                                                                                                          law.
    Shellfish             Date labeling required                     (a) Raw shucked shellfish shall be obtained in nonreturnable        Okla. Admin. Code
                                                                  packages which bear a legible label that identifies the . . . (2) The   310:257-5-15
                                                                  ``sell by'' or ``best if used by'' date for packages with a capacity    (2013).
                                                                  of less than 1.89 L (\1/2\ gallon) or the date shucked for packages
                                                                  with a capacity of 1.89 L (\1/2\ gallon) or more.
                          Sale after date not restricted         Not restricted for shellfish in Oklahoma.                               No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Oregon
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Packaged Perishable   Definition (open date)                     (2) ``Open date'' means a date clearly visible to retail consumers  Or. Rev. Stat.
     Foods                                                        showing the pull date, packing date or other date described in ORS      616.805 (2013).
                                                                  616.835(2).
                          Date labeling required                     No person shall sell or offer for sale at retail any packaged       Or. Rev. Stat.
                                                                  perishable food unless the package bears a clearly marked, printed or   616.815 (2013).
                                                                  stamped label showing the open date for the perishable food in the
                                                                  package. Such label shall be so designed and placed as to be clearly
                                                                  visible to the consumer.
                                                                     Unless otherwise provided, the following perishable foods shall be  Or. Admin. R. 603-
                                                                  open date labeled with the pull date:                                   025-0080 (2013).
                                                                       (1) Processed or cured meat and meat products including wieners,
                                                                    bologna, luncheon meat, liver sausage, salami, braunschweiger, hams
                                                                    and ham products, and bacon (tuck or vacuum packed).
                                                                       (2) Fluid milk and cream products for which a standard of
                                                                    identity has been established under ORS Chapter 621, cottage
                                                                    cheeses, yogurts, cheeses with a moisture content of more than 50
                                                                    percent, sour creams, and party dips.
                                                                       (3) Bakery products as defined in subsection (2) of ORS 625.010,
                                                                    pastries, cookies, or crackers having a moisture content of 16
                                                                    percent or more.
                                                                       (4) Eggs in shell.
                                                                       (5) Vegetable, macaroni, or potato salads that use mayonnaise or
                                                                    other acidic dressing as an ingredient or dressing, puddings,
                                                                    sandwiches, and other ready-to-eat products.
                                                                       (6) Fowl, including chickens, fryers, turkeys, ducks, geese, and
                                                                    other domesticated birds.
                                                                       (7) Fresh or raw packaged meat products, whether whole, ground,
                                                                    chopped or fabricated.
                                                                       (8) Fresh sausage products.
                                                                       (9) Fresh seafood products.
                                                                       (10) Fresh fish products (not breaded or precooked).
                          Sale after date not permitted (with        (1) No person shall sell or offer for sale at retail any packaged   Or. Rev. Stat.
                           exemptions)                            perishable food after the expiration of the open pull date appearing    616.825 (2013).
                                                                  on the label of the package or container unless:

                                                                       (a) The package has been separated from packages of perishable
                                                                    food with open pull dates that have not expired;
                                                                       (b) Each such package or group of packages is clearly identified
                                                                    in retail display as having an expired open pull date; and
                                                                       (c) The food is fit for human consumption according to
                                                                    applicable state and Federal law.

                                                                     (2) Notwithstanding the provisions of this section, a vendor shall
                                                                  be allowed the first 8 business hours after the expiration of the
                                                                  open pull date within which to remove all packages with an expired
                                                                  pull date.
                          Alteration of date labels not              No person shall:                                                    Or. Rev. Stat.
                           permitted                                                                                                      616.830 (2013).
                                                                       (1) Alter, deface or remove the open date from any perishable
                                                                    food retail or shipping package carton, container or wrapper.
                                                                       (2) Label any perishable food retail or shipping package carton,
                                                                    container or wrapper in a manner that does not conform to the rules
                                                                    promulgated pursuant to ORS 616.835.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Pennsylvania
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Milk                  Date labeling required                     (a) Label requirement. The cap or nonglass container of             7 Pa. Code  59a.15
                                                                  pasteurized milk held in retail food stores, restaurants, schools or    (2013).
                                                                  similar food facilities for resale shall be conspicuously and legibly
                                                                  marked in a contrasting color with the designation of the ``sell-by''
                                                                  date--the month and day of the month after which the product may not
                                                                  be sold or offered for sale. The designation may be numerical--such
                                                                  as ``8-15''--or with the use of an abbreviation for the month, such
                                                                  as ``AUG 15 or AU 15.'' The words ``Sell by'' or ``Not to be sold
                                                                  after'' must precede the designation of the date, or the statement
                                                                  ``Not to be sold after the date stamped above'' must appear legibly
                                                                  on the container. This designation of the date may not exceed 17 days
                                                                  beginning after midnight on the day on which the milk was
                                                                  pasteurized.
                          Sale after date not permitted              (c) Prohibition. Pasteurized milk may not be sold or offered for    7 Pa. Code  59a.15
                                                                  sale if the milk is sold or offered for sale after the sell-by date     (2013).
                                                                  designated on the container.
    Shellfish             Date labeling required                     (a) Label requirement. Raw shucked shellfish shall be obtained in   7 Pa. Code  46.246
                                                                  nonreturnable packages which bear a legible label that identifies the   (2013).
                                                                  following:[.] (2) For packages with a capacity of less than 1.87 L
                                                                  (\1/2\ gallon): the ``sell by'' or ``best if used by'' date.
                          Sale after date not restricted         Not restricted for shellfish in Pennsylvania.                           No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Rhode Island
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Packaged Bakery       Definition (pull date)                     (C) `Pull Date' is the final date or day as established by the      31-3-5 R.I. Code R.
     Products                                                     packer or manufacturer upon which a packaged bakery product may be       21-33-PBP 1.00
                                                                  sold, except as provided under Chapter 21-33, Section 3 and Section     (2013).
                                                                  R21-33-PBP 6.00 of these rules and regulations.
                          Definition (packaged bakery product)       (A) A `Packaged Bakery Product' is a packaged bakery or bakery-     31-3-5 R.I. Code R.
                                                                  type product consisting of flour and other ingredients having a          21-33-PBP 1.00
                                                                  normal shelf life as established by the manufacturer or distributor     (2013).
                                                                  of sixty (60) days or less.
                                                                     The term shall not include frozen or canned products or foods
                                                                  which are or may be baked as part of a cooking or preparation
                                                                  procedure.
                          Date labeling required                     All packaged bakery product sold in this state shall have a pull    31-3-5 R.I. Code R.
                                                                  date in a conspicuous place upon each package in which they are sold     21-33-PBP 2.00
                                                                  in accordance with these regulations and Chapter 21-33 of Rhode         (2013).
                                                                  Island General Laws of 1956, as amended.
                          Sale after date not permitted (with        Packaged bakery products may be sold after their `Pull Date',       31-3-5 R.I. Code R.
                           exemptions)                            provided however, that:                                                  21-33-PBP 6.00
                                                                                                                                          (2013).
                                                                       (1) Such products are segregated from such products which have
                                                                    not passed their `Pull Date', and
                                                                       (2) Shelf markers or placards, or markings on the individual
                                                                    packages clearly identify such products as being offered for sale
                                                                    `Past Date'.

                                                                   The requirements of this section do not apply to any business whose
                                                                  exclusive purpose is the sale of past-date bakery products.
    Shellfish             Date labeling required                     6.6(d) The dealer shall assure that each package containing less    31-3-9 R.I. Code R.
                                                                  than 64 fluid ounces of fresh or frozen shellfish shall have:            6.0 (2013).

                                                                       (i) The shucker-packer's or repacker's license number on the
                                                                    label; and
                                                                       (ii) A ``SELL BY DATE'' which provides a reasonable subsequent
                                                                    shelf-life or the words ``BEST IF USED BY'' followed by a date when
                                                                    the product would be expected to reach the end of its shelf-life.
                                                                    The date shall consist of the abbreviation for the month and number
                                                                    of the day of the month. For frozen shellfish, the year will be
                                                                    added to the date.
                          Sale after date not restricted         Not restricted for shellfish in Rhode Island.                           No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         South Carolina
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     (E) . . . On this label must be printed or stamped, legibly in      S.C. Code Ann.  39-
                                                                  letters not less than \1/4\" in size, the date when the eggs were       39-140 (2013).
                                                                  packed and candled or the expiration date, which may not exceed forty-
                                                                  five days from the date packed
                          Sale after date not restricted         Not restricted for eggs in South Carolina.                              No relevant state
                                                                                                                                          law.
    Shellfish             Date labeling required                     (2) Packages containing less than sixty-four (64) fluid ounces      S.C. Code Ann.
                                                                  shall include:                                                          Regs. 61-47
                                                                                                                                          (2013).
                                                                       (a) The words ``SELL BY'' or ``BEST IF USED BY'' followed by a
                                                                    reasonable date when the product would be expected to reach the end
                                                                    of its shelf life;
                                                                       (b) The date as a month and day of the month; and
                                                                       (c) For fresh frozen shellfish, the year shall be added to the
                                                                    date.
                          Sale after date not restricted         Not restricted for shellfish in South Carolina.                         No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         South Dakota *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Tennessee
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Texas
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     (d) The dealer shall assure that each package containing less than  25 Tex. Admin. Code
                                                                  64 fluid ounces of fresh or frozen molluscan shellfish shall have [.     241.66 (2013).
                                                                  . .] (2) a ``SELL BY DATE'' which provides a reasonable subsequent
                                                                  shelf life or the words ``BEST IF USED BY'' followed by a date when
                                                                  the product would be expected to reach the end of its shelf life.
                          Sale after date not restricted         Not restricted for shellfish in Texas.                                  No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Utah
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    ----                  ----                                   ----                                                                    ----
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Vermont
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     R.1. Raw shucked shellfish shall be obtained in nonreturnable       12-5 Vt. Code R.
                                                                  packages which bear a legible label that identifies the: . . . b. The   30:5-204 (2013).
                                                                  ``sell by'' date for packages with a capacity of less than 1.87 L (\1/
                                                                  2\ gallon) or the date shucked for packages with a capacity of 1.87 L
                                                                  (\1/2\gallon) or more.
                          Sale after date not restricted         Not restricted for shellfish in Vermont.                                No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Virginia
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Dairy                 Definition (dairy products)                ``Dairy product'' means butter, natural or processed cheese, dry    2 VA. Admin. Code
                                                                  whole milk, nonfat dry milk, dry buttermilk, dry whey, evaporated       5-531-10 (2013).
                                                                  whole or skim milk, condensed whole milk and condensed plain or
                                                                  sweetened skim milk.
                          Date labeling required                     4. No person may sell or offer for sale to the final consumer any   2 VA. Admin. Code
                                                                  dairy product in container or package form that does not bear a         5-531-60 (2013).
                                                                  ``sell by date.''
                          Sale after date not permitted              5. No person may sell or offer for sale to the final consumer any   2 VA. Admin. Code
                                                                  dairy product in container or package form after the ``sell by date''   5-531-60 (2013).
                                                                  shown on the package.
                          Alteration of date labels not              6. No person may change, remove, or replace the ``sell by date''    2 VA. Admin. Code
                           permitted                              on any dairy product in container or package form after the ``sell by   5-531-60 (2013).
                                                                  date'' is initially affixed to the package.
    Shellfish             Date labeling required                     A. Raw shucked shellfish shall be obtained in nonreturnable         2 VA. Admin. Code
                                                                  packages that bear a legible label that identifies the: . . . ``sell    5-585-400 (2013).
                                                                  by'' or ``best if used by'' date for packages with a capacity of less
                                                                  than \1/2\ gallon (1.87 L) or the date shucked for packages with a
                                                                  capacity of \1/2\ gallon (1.87 L) or more.
                          Sale after date not restricted         Not restricted for shellfish in Virginia.                               No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Washington *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Perishable Packaged   Definition (pull date)                     (2) ``Pull date'' means the latest date a packaged food product     Wash. Rev. Code
     Food Goods                                                   shall be offered for sale to the public.                                Ann.  69.04.900
                                                                                                                                          (2013).
                          Definition (shelf life)                    (3) ``Shelf life'' means the length of time during which a          Wash. Rev. Code
                                                                  packaged food product will retain its safe consumption quality if       Ann.  69.04.900
                                                                  stored under proper temperature conditions.                             (2013).
                          Definition (perishable packaged food       (1) ``Perishable packaged food goods'' means and includes all       Wash. Rev. Code
                           goods)                                 foods and beverages, except alcoholic beverages, frozen foods, fresh    Ann.  69.04.900
                                                                  meat, poultry and fish and a raw agricultural commodity as defined in   (2013).
                                                                  this chapter, intended for human consumption which are canned,
                                                                  bottled, or packaged other than at the time and point of retail sale,
                                                                  which have a high risk of spoilage within a period of thirty days,
                                                                  and as determined by the director of the department of agriculture by
                                                                  rule and regulation to be perishable.
                          Date labeling required                     All perishable packaged food goods with a projected shelf life of   Wash. Rev. Code
                                                                  thirty days or less, which are offered for sale to the public after     Ann.  69.04.905
                                                                  January 1, 1974 shall state on the package the pull date.               (2013).
                          Sale after date not permitted (with        Can products be sold after the pull date? Yes, products can be      Wash. Admin. Code
                           exemptions)                            sold after the pull date has expired if they are still wholesome, not   16-142-130 (2013).
                                                                  a danger to health and clearly labeled indicating that the pull date
                                                                  has expired. They must be separated from products that are still
                                                                  within pull date.
                          Alteration of date labels not              Can pull dates be changed? No, pull dates on perishable packaged    Wash. Admin. Code
                           permitted                              foods subject to pull dating may not be changed, crossed-out or         16-142-150 (2013).
                                                                  concealed.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Washington, D.C.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    General               Definition (pull date)                     Pull date--the date after which the food may not be sold, unless    D.C. Mun. Regs.
                                                                  isolated and prominently labeled as being beyond the last date on       tit. 25-A,  9901
                                                                  which the food should be sold without a significant risk of spoilage,   (2013).
                                                                  loss of palatability if stored by the consumer after that date and in
                                                                  the manner which the food can reasonably be expected to be stored.
    Potentially           Date labeling required                     718.1  All pasteurized fluid milk, fresh meat, poultry, fish,       D.C. Mun. Regs.
     Hazardous Foods,                                             bread products, eggs, butter, cheese, cold meat cuts, mildly            tit. 25-A,  718
     Dairy, Meat/                                                 processed pasteurized products, and potentially hazardous foods sold    (2013).
     Poultry, Eggs                                                in food-retail establishments which are pre-wrapped and not intended
                                                                  to be eaten on the premises of the food establishment shall have
                                                                  easily understood pull dates prominently displayed on their
                                                                  containers.
                          Sale after date not permitted              Pull date--the date after which the food may not be sold, unless    D.C. Mun. Regs.
                                                                  isolated and prominently labeled as being beyond the last date on       tit. 25-A,  9901
                                                                  which the food should be sold without a significant risk of spoilage,   (2013).
                                                                  loss of palatability if stored by the consumer after that date and in
                                                                  the manner which the food can reasonably be expected to be stored.
                          Alteration of date labels not              718.2  If any food that has a pull date is rewrapped, the new       D.C. Mun. Regs.
                           permitted                              package shall retain the original pull date and the word                tit. 25-A,  718
                                                                  ``REWRAPPED'' shall be prominent displayed on the package.              (2013).
    Packaged Perishable   Date labeling not required             Date labeling not required for packaged perishable food in Washington,  No relevant state
     Food                                                         D.C.                                                                    law.
                          Sale after date not permitted              No person shall sell, trade, or barter any perishable packaged      D.C. Mun. Regs.
                                                                  food beyond the pull date appearing thereon.                            tit. 25-B,  3606
                                                                                                                                          (2013).
                          Alteration of date labels not              3606.2  No person shall rewrap or repackage any packaged            D.C. Mun. Regs.
                           permitted                              perishable food with the intention of placing a pull date on the food   tit. 25-B,  3606
                                                                  that is different from the original pull date.                          (2013).
    Shellfish             Date labeling required                     2403.5  Each individual package containing less than sixty-four     D.C. Mun. Regs.
                                                                  fluid ounces (64 fl. oz.) of fresh or frozen shellfish shall be         tit. 25-B,  2403
                                                                  labeled with the following information: . . . (b) A ``Sell by'' date    (2013).
                                                                  which provides a reasonable subsequent shelf-life or the words ``Best
                                                                  if used by'' followed by a date when the product would be expected to
                                                                  reach the end of its shelf-life.
                          Sale after date not restricted         Not restricted for shellfish in Washington, D.C.                        No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         West Virginia *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     6.5  Egg producers who own three thousand birds or less shall       W. Va. Code R.  61-
                                                                  denote the expiration date of the eggs on the outside container in      7A-6 (2013).
                                                                  which the egg cards are transported or on an invoice provided to the
                                                                  retailer.
                          Sale after date not restricted         Not restricted for eggs in West Virginia.                               No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Wisconsin
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Eggs                  Date labeling required                     (1)(e) One of the following dates, in addition to the packing date  Wis. Admin. Code
                                                                  under par. (d):                                                         Agric. Trade &
                                                                                                                                          Consumer Prot.
                                                                                                                                          88-08 (2013).
                                                                       1. An expiration date or ``sell by'' date after which the eggs
                                                                    may not be offered for sale or sold at retail. The expiration date
                                                                    may not be more than 30 days from the packing date, including the
                                                                    day on which the eggs were packed. The expiration date or ``sell
                                                                    by'' date shall be designated by at least the first three letters
                                                                    of the month and the date within that month. The date shall be
                                                                    accompanied by a phrase or abbreviation such as ``sell by'' or
                                                                    ``EXP'' which clearly identifies it as an expiration date or ``sell
                                                                    by'' date.
                                                                       2. A ``use by'' date consisting of at least the first three
                                                                    letters of the month, and the date within that month. The date
                                                                    shall be accompanied by a phrase such as ``use by,'' ``best if used
                                                                    by'' or ``use before,'' which indicates that the consumer should
                                                                    use the eggs before that date.
                          Sale after date not permitted              (4)(a) No eggs may be sold as whole eggs at retail after the        Wis. Admin. Code
                                                                  expiration or ``sell by'' date specified for those eggs under subs.     Agric. Trade &
                                                                  (1)(e)1. or (2)(g)1. If otherwise used as human food, the eggs shall    Consumer Prot.
                                                                  meet at least grade B egg standards.                                    88-08 (2013).
                          Alteration of date labels not              (4)(b) Eggs labeled with dates under subs. (1)(e) or (2)(g) shall   Wis. Admin. Code
                           permitted                              retain those dates and may not be repackaged or relabeled with any      Agric. Trade &
                                                                  other dates.                                                            Consumer Prot.
                                                                                                                                          88-08 (2013).
    Shellfish             Date labeling required                     3-202.17(A) Raw shucked shellfish shall be obtained in              Wis. Admin. Code
                                                                  nonreturnable packages which bear a legible label that identifies       Agric. Trade &
                                                                  the: . . . (2) The ``sell by'' date for packages with a capacity of     Consumer Prot.
                                                                  less than 1.87 L (\1/2\ gallon) or the date shucked for packages with   75, App. (2013).
                                                                  a capacity of 1.87 L (\1/2\ gallon) or more.
                          Sale after date not restricted         Not restricted for shellfish in Wisconsin.                              No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Wyoming
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Shellfish             Date labeling required                     (a) Raw shucked shellfish shall be obtained in nonreturnable        AGR FSF 3 Wyo. Code
                                                                  packages which bear a legible label that identifies the: . . . (ii)     R.  11 (2013).
                                                                  The ``sell by'' date for packages with a capacity of less than \1/2\
                                                                  (2) gallon (1.87 [L]) or the date shucked for packages with a
                                                                  capacity of \1/2\ (2) gallon (1.87 [L]) or more.
                          Sale after date not restricted         Not restricted for shellfish in Wyoming.                                No relevant state
                                                                                                                                          law.
    --------------------------------------------------------------------------------------------------------------------------------------------------------

    Endnotes

        1. Dana Gunders, Natural Resources Def. Council, Wasted: How America
     Is Losing Up to 40% of Its Food from Farm to Fork to Landfill 12
     (2012).
        2. Jonathan Bloom, American Wasteland xii (Da Capo Lifelong Books,
     2011).
        3. Gunders, supra note 1, at 13.
        4. Food Security in the U.S., U.S. Dep't of Agric. Econ. Research
     Serv. (last updated Sept. 4, 2012), http://www.ers.usda.gov/topics/food-
     nutrition-assistance/food-security-in-the-us/key-statistics-
     graphics.aspx (last visited Apr. 4, 2013).
        5. Gunders, supra note 1, at 4. According to another statistic,
     redistributing only two percent of food waste could provide the needed
     calories/day/person to lift all food-insecure Americans above the
     hunger line. Marlene White, American Wasteland: Jonathan Bloom on Why
     Food Waste Deserves Our Attention, worldwatch.org (Mar. 14, 2012),
     http://blogs.worldwatch.org/nourishingtheplanet/american-wasteland-
     jonathan-bloomon-why-food-waste-deserves-our-attention (last visited
     July 3, 2013).
        6. McKinsey Global Inst., Resource Revolution: Meeting The World's
     Energy, Materials, Food, And Water Needs 72 (2011).
        7. Jean C. Buzby & Jeffry Hyman, Total and Per Capita Value of Food
     Loss in the United States, 37 Food Pol'y 561, 562 (2012).
        8 McKinsey Global Inst., supra note 6, at 72.
        9. Kevin D. Hall, et al., The Progressive Increase of Food Waste in
     America and Its Environmental Impact, 4 PLoS ONE 1, 2(2009), available
     at http://www.plosone.org/article/
     info%3Adoi%2F10.1371%2Fjournal.pone.0007940.
        10. Bloom, supra note 2, at xi.
        11. Bloom, supra note 2, at 187.
        12. See, e.g., WRAP, Consumer Insight: Date Labels and Storage
     Guidance (2011), available at http://www.wrap.org.uk/sites/files/wrap/
     Technical_report_dates.pdf; Gunders, supra note 1, at 12-13; Bloom,
     supra note 2, at 164-67.
        13. Bloom, supra note Error! Bookmark not defined., at 166.
        14. Bio Intelligence Serv., Preparatory Study on Food Waste Across
     EU 27, at 124-27 (2010).
        15. Office of Tech. Assessment, Open Shelf-Life Dating of Food 1
     (1979), available at www.princeton.edu/ota/disk3/1979/7911/7911.PDF
     (last visited Dec. 21, 2012). The Office of Technology Assessment was
     an office of the United States Congress from 1972 to 1995. Its reports
     on technological and scientific issues were widely praised for their
     objectivity and authoritative analysis. See Technology Assessment and
     Congress, Federation of American Scientists' Office of Technology
     Assessment Archive, http://www.fas.org/ota/
     technology_assessment_and_congress/ (last visited July 3, 2013).
        16. Office of Tech. Assessment, supra note 1, at 1.
        17. Id.; see also Inst. of Food Technologists, Open Shelf-life
     Dating of Food, 35 Food Tech. 89, 89 (1981).
        18. Gerri Ransom, National Advisory Committee on Microbiological
     Criteria for Foods, Consideration for Establishing Safety-Based Consume-
     By Date Labels for Refrigerated Ready-to-Eat Foods, 68 J. of Food
     Protection 1761, 1763 (2005).
        19. U.S. Gov't Accountability Office, MWD-75-19, Food Labeling:
     Goals, Shortcomings, and Proposed Changes 44 (1975), available at http:/
     /www.gao.gov/assets/120/115505.pdf.
        20. Id.
        21. Ransom, supra note 18, at 1763.
        22. See Gov't Accountability Office, supra note 19, at 43. When the
     New York State Consumer Protection Board released a book that allowed
     consumers to decipher closed dates in the early 1980s, the agency was
     inundated with more than 100,000 requests for the publication in the
     first year. See Inst. of Food Technologists, supra note 89, at 89.
        23. A USDA study from 1973 found that more than 60 retail chains,
     comprising about 15,000 food stores nationwide, had implemented open
     dating systems. See Gov't Accountability Office, supra note Error!
     Bookmark not defined., at 45. While open code dating became more
     prevalent in the 1970s, the practice itself can be traced back further.
     There is evidence of open dates being used as early as 1917, and in the
     1930s Consumer Reports found that consumers had a desire for a more
     shopper-friendly date label system. See Theodore P. Labuza & Lynn M.
     Szybist, Open Dating of Foods 7 (2001).
        24. Id. at 45.
        25. Id. at 43.
        26. Office of Tech. Assessment, supra note 15, at 1
        27. Id. at 5.
        28. Id. at 5.
        29. Carol Haddix, Congress Made Food Label a Big Deal, Chicago
     Tribune, Jan. 12, 1978, at F19, available at ProQuest Historical
     Newspapers, Doc. No. 169689062.
        30. Gov't Accountability Office, supra note 19, at 48.
        31. Id.
        32. Id.
        33. Id. at 49.
        34. See S. 2373, 93d Cong., 1st Sess. (1973) (the one bill that did
     eventually pass the Senate). See also Office of Tech. Assessment, supra
     note 15, at 3.
        35. Select Comm. On Nutrition & Human Needs, 93d Cong., National
     Nutrition Policy: Nutrition and the Consumer, Working Paper 11 (Comm.
     Print 1974) (prepared by Freeman H. Quimby & Cynthia B. Chapman).
        36. See Id.
        37. 92 Cong. Rec. S201101-11 (June 16, 1971) (statement of Sen.
     Hartke).
        38. Food Amendments of 1974: Hearing on S. 2373 and Amendments 962
     and 1053, and S. 3012 Before the S. Comm. on Commerce, 93rd Cong. 219
     (1974) (statement of Thomas K. Zaucha of the National Association of
     Food Chains.)
        39. Harvey L. Hensel, Look What Consumerism Has Done Now, 29 Food
     Drug Cosm. L.J. 220, 226 (1974).
        40. Id. at 227-28 (1974).
        41. Gov't Accountability Office, supra note 19, at 44, 47; Inst. of
     Food Technologists, supra note 17, at 94-96.
        42. Id. at 46-47.
        43. Id. at 48.
        44. See, e.g., Hensel, supra note 39, at 227 Select Comm. On
     Nutrition and Human Needs, supra note 37, at 11.
        45. Hensel, supra note 39, at 227 (noting that in 1974 sixteen open
     code dating state laws already existed, and also that twenty-three
     states were in the process of introducing eighty-four open code dating
     bills in the legislative session).
        46. Id. at 227-28.
        47. Gov't Accountability Office, supra note 19, at 49.
        48. H.R. 2897, 106th Cong. (1999).
        49. See H.R. 2897, 106th Cong. (1999); H.R. 2611, 107th Cong.
     (2001); H.R. 468, 108th Cong. (2003); H.R. 3570, 109th Cong. (2005);
     H.R. 4233, 110th Cong. (2005); HR 2087, 111th Cong. (2009).
        50. H.R. 2087, 111th Cong. (2009).
        51. H.R. 2087, 111th Cong.,  6 (2009).
        52. H.R. 2087, 111th Cong.,  2 (2009); 21 CFR  101.9(j) (2013).
        53. H.R. 2087, 111th Cong.,  1 (2009).
        54. Fact Sheets: Food Product Dating, U.S. Dep't of Agric. Food
     Safety & Inspection Serv., http://www.fsis.usda.gov/wps/portal/fsis/
     topics/food-safety-education/get-answers/foodsafety-fact-sheets/food-
     labeling/food-product-dating/foodproduct-dating (last visited July 3,
     2013). The exception to this rule is infant formula, for which the
     Federal Government requires a ``use by'' date. See 21 CFR  107.20
     (2013).
        55. Eastern Research Grp., Inc., Current State of Food Product Open
     Dates In The U.S. 1-13 (2003).
        56. U.S. Const. art I,  8, cl. 3. Congress shall have the power
     ``to regulate commerce with foreign nations, among the several states,
     and with the Indian Tribes.''
        57. See supra notes 26-30 and accompanying text.
        58. Food & Drug Admin., About FDA, http://www.fda.gov/AboutFDA/
     Transparency/Basics/ucm242648.htm (last visited July 31, 2013). U.S.
     Dep't of Agric. Food Safety & Inspection Serv., Food Product Dating,
     supra note 54.
        59. 21 U.S.C.  301-392 (2012); 21 CFR  1.4 (2012); 21 U.S.C.
     343-1 (2012); 15 U.S.C.  1451-1461 (2012); 21 CFR  10.40 (2013); 7
     U.S.C. 499 (2012); 21 U.S.C.  2201-52 (2012). See also, U.S. Dep't of
     Agric., Food Safety & Inspection Serv., A Guide to Federal Food
     Labeling Requirements for Meat and Poultry Products 6 (2007).
        60. 21 U.S.C.  451-472 (2012); 21 U.S.C.  601-695 (2012); 21
     U.S.C.  1031-1056 (2012); 12 U.S.C.  1141 (2012); 7 CFR  2.79
     (a)(1) (2013); 7 CFR  2.53 (2013); 9 CFR  300.2 (2013). See
     Regulations & Policies: Regulations for Package Dating, U.S. Dep't of
     Agric. Food Safety & Inspection Serv., http://www.fsis.usda.gov/
     regulations/Regs_for_Package_Dating/index.asp (last visited Apr. 18,
     2013).
        61. FDA regulates shell eggs and USDA regulates processed egg
     products as well as certified shell eggs under a voluntary grading
     program. 21 U.S.C.  1031-1056 (2012); 21 U.S.C.  301-392 (2012).
     Under the Egg Products Inspection Act, FDA and USDA share
     responsibility over egg products; USDA has a primary role. 63 Fed. Reg.
     27502, 27508 (May 19, 1998).
        62. FDA regulates food safety practices in the production and
     harvesting of raw fruits and vegetables under FSMA. 21 U.S.C.  2201-52
     (2011). USDA regulates the marketing, inspection, and certification of
     fresh fruits and vegetables under the Perishable Agricultural
     Commodities Act of 1930 and other legislation. 7 U.S.C. 499 (2012); 7
     CFR  51 (2013). See also 7 U.S.C.  1621 (2012).
        63. 21 U.S.C.  331(b) (2012). See also 21 U.S.C.  343 (2012).
        64. 21 U.S.C.  331(b) (2012).
        65. 21 U.S.C.  331(b) (2012). A label may be deemed misleading
     under the FD&CA not only if its language makes misleading
     representations, but also if the label fails to reveal important
     information to the consumer. 21 U.S.C.  321(n) (2012). See also 21
     U.S.C.  341 (2012).
        66. 21 U.S.C.  607(e) (2012); 9 CFR  317.8 (2013); 21 U.S.C.
     453(h) (2012); 9 CFR  381.126(a) (2013); 7 U.S.C.  499b(4) (2012).
     The Agricultural Marketing Act of 1946 gives authority to the
     Agricultural Marketing Service, another agency within USDA, to regulate
     labeling for eggs under the voluntary grading program for eggs. 21
     U.S.C.  1036(b) (2012); 7 CFR  56.36 (2013).
        67. 21 U.S.C.  463(a) (2012); 21 U.S.C.  607(c) (2012); 21 U.S.C.
      1043 (2012). Under the Perishable Agricultural Commodities Act of
     1930, USDA may also promulgate regulations. 7 U.S.C.  499(o) (2012).
        68. 21 U.S.C.  453(h) (2012); 21 U.S.C.  607(e) (2012); 21 U.S.C.
      1036(b) (2012).
        69. 21 U.S.C.  457(b) (2012); 21 U.S.C. 607(c) (2012).
        70. 21 U.S.C. 1031 (2012).
        71. 63 Fed. Reg. 27502, 27507 (May 19, 1998).
        72. 15 U.S.C.  45(1) (2012); Fed. Trade Comm'n, About the Federal
     Trade Commission, http://www.ftc.gov/ftc/about.shtm (last visited
     August 4, 2013).
        73. 15 U.S.C.  1454(c) (2012).
        74. 15 U.S.C.  1454(c) (2012); Memorandum of Understanding Between
     The Federal Trade Commission and The Food and Drug Administration, MOU
     225-71-8003 (1971), available at http://www.fda.gov/AboutFDA/
     PartnershipsCollaborations/MemorandaofUnderstandingMOUs/DomesticMOUs/
     ucm115791.htm.
        75. 21 U.S.C.  331(b) (2012). See also 21 U.S.C.  343 (2012). See
     also Government Accountability Office, supra note 19, at 49.
        76. FDA Basics, Food and Drug Administration, http://www.fda. gov/
     AboutFDA/Transparency/Basics/ucm210073.htm (last updated Apr. 13,
     2012). See appendix for full law.
        77. FDA's infant formula regulation requires that manufacturers set
     a ``use by'' date ``on the basis of tests or other information''
     showing that the formula will remain of sufficiently high quality
     ``under the conditions of handling, storage, preparation, and use
     prescribed by label directions.'' 21 CFR  107.20 (2012).
        78. Toby Milgrom Lebin, The Infant Formula Act of 1980: A Case Study
     of Congressional Delegation to the Food and Drug Administration, 42
     Food Drug Cosm. L.J. 101-104 (1987); House Subcomm. On Oversight and
     Investigations of the Comm. On Interstate and Foreign Commerce, 96th
     Cong., 2d Sess., Infant Formula: Our Children Need Better Protection 3
     (Comm. Print 96-IFC 42).
        79. 21 U.S.C.  350a (1980); Infant Formula Act of 1980, Pub L. No.
     96-359, 94. 1190 (codified at 21 U.S.C.  350a, 301, 321 (aa), 331,
     374(a) (1980)). See also Toby Milgrom Lebin, The Infant Formula Act of
     1980: A Case Study of Congressional Delegation to the Food and Drug
     Administration, 42 Food Drug Cosm. L.J. 101-104 (1987); House Subcomm.
     On Oversight and Investigations of the Comm. On Interstate and Foreign
     Commerce, 96th Cong., 2d Sess., Infant Formula: Our Children Need
     Better Protection 3 (Comm. Print 96-IFC 42).
        80. 21 U.S.C.  350a (1980); Infant Formula Act of 1980, Pub L. No.
     96-359, 94. 1190 (codified at 21 U.S.C.  350a, 301, 321(aa), 331,
     374(a) (1980)).
        81. 21 CFR  107.20(c) (2013).
        82. 21 CFR  107.20 (2013).
        83. See U.S. Dep't of Agric. Food Safety & Inspection Serv.,
     Requirements for Meat and Poultry Products, supra note 59, at 4. USDA
     does explicitly require a ``pack date'' for poultry products in the
     form of a closed code or a calendar date. 9 CFR  381.126 (2012). See
     also Labeling Compliance Policy Guide on Poultry Food Product Dating,
     U.S. Dep't of Agric., Food Safety & Inspection Serv. 2 (2010),
     available at http://www.fsis.usda.gov/PDF/
     labeling_guide_on_poultry_food_dating.pdf.
        84. See U.S. Dep't of Agric., Agric. Mktg. Serv., Ams PY Instruction
     No. 910, Shell Eggs Grading Handbook, Section 5 (2012); Agric. Mktg.
     Serv., U.S. Dep't of Agric. Egg Carton Labeling (Aug. 15, 2006),
     available at http://www.ams.usda.gov/AMSv1.0/
     ams.fetchTemplateData.do?template=TemplateN&navID=PYEggCartonLabeling1N
     av1-200&rightNav1=PYEggCartonLabeling1
      Nav1-200&topNav=&leftNav=
     CommodityAreas&page=PYEggCartonLabeling2&resultType=&acct=pgeninfo. For
     all egg products certified by USDA, ``all cartons, overwraps, and other
     types of consumer packages bearing the USDA grademark require legible
     lot numbering on the consumer package'' or a ``pack date.'' Further, if
     manufacturers choose to use code dating using terms such as ``use by,''
     ``use before,'' or ``best before'' on USDA shield eggs, the date
     utilized should not exceed 45 from the day the eggs were packed.
     However, eggs not packed in USDA facilities do not need to follow the
     same rules, instead, ``eggs that are not packed under USDA's grading
     program must be labeled and coded in accordance with egg laws in the
     state where they are packed and/or sold.'' Id.
        85. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
     Product Dating, supra note 54.
        86. See id.; 9 CFR  317.8(b)(32)(i) (2013).
        87. 9 CFR  317.8(b)(32)(2) (2013).
        88. Nat'l Inst. of Standards & Tech., U.S. Dep't of Commerce,
     Handbook 130: Uniform Laws and Regulations in the Areas of Legal
     Metrology and Engine Fuel Quality 1 (2013), available at http://
     www.nist.gov/pml/wmd/pubs/upload/hb130-13-final.pdf.
        89. About NCWM, Nat'l Conference on Weights & Measures, http://
     www.ncwm.net/about (last visited July 3, 2013).
        90. Nat'l Inst. of Standards & Tech., supra note 88, at 149.
        91. Id. at 9.
        92. Id. The model regulation recommends two options for
     implementation--states are advised to either require mandatory open
     dating or to allow voluntary open dating that must adhere to the
     strictures of the model regulation.
        93. Id. at 153-55.
        94. Id. at 154-55.
        95. See id.
        96. Id.
        97. Id. at 9-13.
        98. Id.
        99. FDA Food Code, U.S. Dep't of Health & Human Servs., Food & Drug
     Admin., http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/
     FoodCode/default.htm (last visited Jan.16, 2013).
        100. Id.
        101. Id.
        102. Id. at  3-202.17, 3-203.11.
        103. Id. at  3-501.17, 3-501.18.
        104. Id. at  3-502.12.
        105. Id. at  3-202.17, \ (A)(2).
        106. Id. at  3-501.17, \ (A).
        107. Id.
        108. Id. at  3-202.17; Ark. Admin. Code 007.04.8-3-202.17; Cal.
     Health & Safety Code  114039 (2011); 4000 Del. Admin. Code  3-202.17
     (2013); Ga. Comp. R. & Regs. 40-7-1-.10 (2013); 410 Ind. Admin. Code 7-
     24-156 (2013); N.J. Admin. Code  8:24-3.2 (2013); N.D. Admin. Code 33-
     33-04-03.1 (2013); Okla. Admin. Code  310:257-5-15 (2013); 7 Pa. Code
      46.246 (2013); 12-5 Vt. Code R.  30:5-204 (2013); 2 VA. Admin. Code
      5-585-400 (2013); Wis. Admin. Code Agric. Trade & Consumer Prot.
     75, App. (2013); AGR FSF 3 Wyo. Code R.  11 (2013).
        109. 35A Am. Jur. 2d Food  10 (2012). U.S. Const. art 6, cl. 2.
     ``This Constitution, and the Laws of the United States . . . shall be
     the supreme Law of the Land; and the Judges in every state shall be
     bound thereby, any Thing in the Constitution or Laws of any state to
     the Contrary notwithstanding.''
        110. 35A Am. Jur. 2d Food  10 (2012).
        111. Theodore P. Labuza & Lynn M. Szybist, Current Practices and
     Regulations Regarding Open Dating of Food Products 30 (The Retail Food
     Industry Ctr., Working Paper No. 01, 1999).
        112. Ga. Comp. R. & Regs. 40-7-1-.02 (2013).
        113. Ga. Comp. R. & Regs. 40-7-1-.02 (2013); Ga. Comp. R. & Regs. 40-
     7-1-.26 ``Labeling''
        114. See Inst. of Food Technologists, supra note 17., at 94.
        115. The USDA Food Safety and Inspection Service reports that only
     about forty percent of states require date labeling for some food
     items, but our research found restrictions in more states. See U.S.
     Dep't of Agric. Food Safety & Inspection Serv., Food Product Dating,
     supra note 54.
        116. 105 Mass. Code Regs.  520.119(F) (2013).
        117. Massachusetts has adopted one of the more extreme approaches in
     this regard, requiring a ``sell by'' or ``best if used by'' date for
     the sale of all perishable and semi-perishable foods. 105 Mass. Code
     Regs.  520.119(D) (2013).
        118. Md. Code Regs. 10.15.06.10 (2013).
        119. Minn. Stat.  31.783 (2013).
        120. Minn. R. 1520.1900 (2013).
        121. Minn. R. 4626.0200 (2013).
        122. Nat'l Inst. of Standards & Tech., supra note 88, at 9-13.
        123. Mich. Comp. Laws Ann.  289.8107 (2013).
        124. 31-3-5 R.I. Code R.  21-33-PBP 2.00 (2013).
        125. N.H. Code Admin. R. Agr 1412.04 (2013), Ga. Comp. R. & Regs. 40-
     7-1.26 (2013).
        126. Minn. Stat.  31.786 (2013); Ohio Rev. Code Ann.  3715.171
     (2013).
        127. Current as of August 2013. See appendices for qualifications of
     regulations assessed in this report.
        128. Current as of August 2013. See appendices for qualifications of
     regulations assessed in this report. Note that the type of date after
     which sale is restricted varies.
        129. Alabama is unique in that it is the only state that does not
     affirmatively require the presence of date labels on any foods but then
     regulates such date labels once they are applied to foods and in some
     cases forbids the sale of foods after those dates. See Ala. Code Ann.
     20-1-27 (2013); Ala. Admin. Code r. 420-3-22.03 (2013); Ala. Admin.
     Code r. 420-3-22.03 (2013).
        130. Current as of August 2013. See appendices for qualifications of
     regulations assessed in this report.
        131. Note that states define ``perishable foods'' differently, so
     this term may include some variety of the other food items listed here,
     such as eggs, meat, and dairy.
        132. Potentially hazardous foods are generally defined as those
     foods that require time/temperature control for safety. However,
     different states include various food items within their definitions of
     potentially hazardous foods, so this term may include some variety of
     the other food items listed here, such as eggs, meat, and dairy.
        133. Baltimore, Md. Code  6-505.1 (2009).
        134. Telephone interview with representative of N.Y. State Dep't. of
     Agric. & Mktg. (Nov. 28, 2011).
        135. Dep't of Health & Mental Hygiene, Board of Health, Notice of
     Adoption of a Resolution Repealing Articles 111 and 117 of the New York
     City Health Code 2 (2010), available at http://www.nyc.gov/html/doh/
     downloads/pdf/notice/2010/notice-article-111-117-noa.pdf.
        136. Id. at 3.
        137. Id.
        138. Eastern Research Grp., Inc., supra note 55, at 1-12.
        139. Id.
        140. See Christine Blank, Good News on Unsaleables?, Supermarket
     News (July 19, 2004), http://supermarketnews.com/archive/good-news-
     unsaleables.
        141. Id.
        142. Food Mktg. Inst., The Sustainability Opportunity for Retail and
     Wholesale Executives, available at http://www.fmi.org/industry-topics/
     sustainability/key-sustainability-tools-andresources/getting-started-
     tools (click on ``The Sustainability Opportunities for Retail and
     Wholesale Executives'') (last visited July 22, 2013) (indicating that
     92% of consumers agree that it is important for the U.S. food industry
     ``to be more proactive about addressing environmental concerns.'')
        143. Aristeidis Theotokis, et al., Effects of Expiration Date-Based
     Pricing on Brand Image Perceptions, 88 J. of Retailing 72, 72 (2012)
     (highlighting findings of consumer behavior studies showing that
     expiration date-based pricing (EDPB) may ``generate positive consumer
     evaluations when framed as a cause-related marketing activity to reduce
     waste''). See also Michael Tsiros & Carrie M. Heilman, The Effect of
     Expiration Dates and Perceived Risk on Purchasing Behavior in Grocery
     Store Perishable Categories, 69 J. of Mktg. 114, 115-16 (2005)
     (marketing study modeling ``the process by which consumers formulate
     perceptions of brand quality after [] exposure to EDPB practice'').
        144. Eastern Research Grp., Inc., supra note 55, at 3-6.
        145. Eastern Research Grp., Inc., supra note 55, at 3-1.
        146. Id. at 3-4.
        147. Eastern Research Grp., Inc., supra note 55, at 3-6.
        148. Id. at 3-5.
        149. Eastern Research Grp., Inc., supra note 55, at 1-6.
        150. Telephone Interview with Doug Rauch, former retail executive
     (Dec. 3, 2012).
        151. Eastern Research Grp., Inc., supra note 55, at 3-2.
        152. Labuza & Szybist, Current Practices and Regulations, supranote
     55, at 10.
        153. Eastern Research Grp., Inc., supra note 55, at 3-2.
        154. Eastern Research Grp., Inc., supra note 55, at 3-10.
        155. Dan Charles, Don't Fear that Expired Food, NPR (Dec. 26, 2012),
     http://www.npr.org/blogs/thesalt/2012/12/26/167819082/dont-fear-that-
     expired-food (last visited July 3, 2013).
        156. Eastern Research Grp., Inc., supra note 55, at 3-1.
        157. Id. at 3-9.
        158. Id. at 3-10.
        159. Id.
        160. The FDA's infant formula guidelines for testing with regard to
     nutrient content represent one important exception. See 21 CFR  107.20
     (2013).
        161. Labuza & Szybist, Current Practices and Regulations, supra note
     111, at 40.
        162. Eastern Research Grp., Inc., supra note 55, at 3-13.
        163. Mary Bender Brandt, et al., Ctr. for Food Safety & Applied
     Nutrition, FDA, Prevalence of Food Safety, Quality, and Other Consumer
     Statements on Labels of Processed, Packaged Foods, 23 Food Protection
     Trends 870, 876 (2003).
        164. See Blank, supra note 140.
        165. Bender, supra note 163.
        166. Directive 2000/13/EC of the European Parliament and the Council
     on the approximation of the laws of the Member States, Art. 3 (``E.U.
     Food Labeling Directive''). The Directive is implemented in Great
     Britain by the Food Labelling Regulations 1996 (FLR). According to the
     FLR, ``food ready for delivery to the ultimate consumer or to catering
     establishments must carry an `appropriate durability indication,' '' in
     the form of either a ``best before'' date or a ``use by'' date. Great
     Britain Food Labelling Regulations 1996, 1996 No. 1499 (20)-(22).
        167. Id. at 11.
        168 Bus. Reference Panel, Better Regulation of `Use by' Date
     Labelled Foods: A Business Review 6 (2011). According to the FLR, it is
     an offense to sell food after the use-by date. This is unique to the
     United Kingdom, and is not required in the E.U. Food Labeling
     Directive.
        169. See Dep't for Env't, Food & Rural Affairs, Guidance on the
     Application of Date Labels to Food (Sept. 2011).
        170. Id. at 14. The decision tree explains to manufacturers that ``
     `best before' dates relate to food quality, including taste, texture,
     aroma and appearance, whilst `use by' dates relate to food safety.''
     Thus ``best before'' is appropriate for the vast majority of foods, and
     `` `use by' is the required form of date mark for those foods which are
     highly perishable from a microbiological point of view and which are in
     consequence likely after a relatively short period to present a risk of
     food poisoning.'' Id. at 6-7.
        171. Id. at 7.
        172. Telephone Interview with Dr. Theodore P. Labuza, Professor of
     Food Science, Univ. of Minn. (Oct. 10, 2012).
        173. Serri Graslie, Willing To Play The Dating Game With Your Food?
     Try A Grocery Auction, NPR (Aug. 23, 2012), http://www.npr.org/blogs/
     thesalt/2012/08/23/159601015/willing-to-play-the-dating-game-with-your-
     food-try-a-grocery-auction. 174 Office of Tech. Assessment, supra note
     15, at 21; Labuza & Szybist, Current Practices and Regulations, supra
     note 15, at 20.
        175. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
     Product Dating, supra note 54.
        176. See Eastern Research Grp., Inc., supra note 55, at 4-11.
        177. Katherine M. Kosa, et al., Consumer Knowledge and Use of Open
     Dates: Results of a Web-Based Survey, 70 J. of Food Protection 1213,
     1218 (2007).
        178. Id.
        179. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
     Product Dating, supra note 54.
        180. Food Mktg. Inst., U.S. Grocery Shopper Trends 144 (2011).
     Another study found that sixteen percent of consumers typically throw
     out milk on its ``sell by'' date. Labuza & Szybist, Open Dating of
     Foods, supra note 23, at 92.
        181. The report was sponsored by the U.S. Department of Agriculture,
     Food Safety and Inspection Service; U.S. Department of Health and Human
     Services, Food and Drug Administration, and Centers for Disease Control
     and Prevention; U.S. Department of Commerce, National Marine Fisheries
     Service; and the U.S. Department of Defense, Veterinary Service
     Activity.
        182. Ransom, supra note 18, at 1763.
        183. Eastern Research Grp., Inc., supra note 55, at 4-11 to -12.
        184. Id. at 4-11 to -12; Kosa, et al., supra note 177, at 1218.
        185. Shirley J. Van Garde & Margy J. Woodburn, Food Discard
     Practices of Householders, 87 J. of the Am. Dietetic Ass'n 322, 329
     (1987).
        186. Office of Tech. Assessment, supra note 15, at 6.
        187. U.S. Dep't of Agric., Food Safety and Inspection Serv., Food
     Product Dating, supra note 54.
        188. Brandt, et al., supra note 163, at 872.
        189. Bus. Reference Panel, supra note 168, at 19.
        190. Interview with Dr. Theodore P. Labuza supra note 172; telephone
     Interview with Dr. Elliot Ryser, Professor of Food Science & Human
     Nutrition, Mich. State Univ. (Nov. 1, 2012). Susceptible populations
     include pregnant women, older adults, and those with chronic illnesses
     such as AIDS, cancer, and diabetes. See Who's At Risk, FoodSafety.gov,
     http://www.foodsafety.gov/poisoning/risk (last visited Sept. 5, 2013).
        191. Bus. Reference Panel, supra note 168, at 19.
        192. See Labuza & Szybist, Current Practices and Regulations, supra
     note 111, at 11-15.
        193. Van Garde & Woodburn, supra note 185, at 329.
        194. Labuza & Szybist, Current Practices and Regulations, supra note
     111, at 19-20.
        195. Office of Tech. Assessment, supra note 15, at 21.
        196. Bus. Reference Panel, supra note 168, at 1.
        197. Kosa, et al., supra note 177, at 1218.
        198. Ctr. for Food Safety & Applied Nutrition, Food & Drug Admin. &
     Food Safety & Inspection Serv., U.S. Dep't of Agric., Quantitative
     Assessment of Relative Risk to Public Health from Foodborne Listeria
     monocytogenes Among Selected Categories of Ready-to-Eat Foods viii
     (2003) [hereinafter Quantitative Assessment].
        199. Id. at viii.
        200. Ransom, supra note 18., at 1762.
        201. Id. at 1770.
        202. Id. at 1761-66.
        203. The National Advisory Committee on Microbiological Criteria for
     Foods defines ``Safety-Based Date Label (SBDL)'' thusly: ``Labeling
     information regarding storage time to control the risk of illness from
     psychotropic pathogens. An SBDL may be a day/month/year or the number
     of days after purchase or opening and may include other statements such
     as `keep refrigerated' or `store below 40 F.' '' Ransom, supra note 18,
     at 176-63.
        204. Interview with Dr. Theodore P. Labuza, supra note 172. The
     National Advisory Committee on Microbiological Criteria for Foods
     (NACMCF) has defined Ready-to-Eat products as ``food that is in edible
     form without additional preparation to achieve food safety (such as
     heating) but may receive additional preparation for palatability or
     aesthetic, epicurean, gastronomic, or culinary purposes.'' Ransom,
     supra note 18, at 1763.
        205. Ransom, supra note 18, at 1765. Cumulatively, these outbreaks
     accounted for 487 illnesses, 235 hospitalizations, and 111 fatalities.
     Id. Overall, there are approximately 1,600 cases of listeriosis every
     year in the U.S. Listeria: Statistics, Ctr. for Disease Control and
     Prevention, http://www.cdc.gov/listeria/statistics.html (last visited
     Apr. 13, 2013).
        206. Ransom, supra note 18, at 1765 (2005) (noting that ready-to-eat
     foods were implicated in nine outbreaks and were suspected contributors
     in a number of the remaining cases; the only other suspected products
     were raw vegetables, shrimp, deli meats, and hot dogs).
        207. See Amit Pal, et al., Safety-Based Shelf Life Model for
     Frankfurters Based on Time To Detect Listeria monocytogenes with
     Initial Inoculum Below Detection Limit, 72 J. Food Protection 1878,
     1882-83 (2009) (discussing the benefits of using a Time-Temperature
     Integrator tag or a time-temperature data logger to account for
     temperature abuse).
        208. See generally U.S. Food & Drug Admin., FDA Food Code, supra
     note 99.
        209. See id.  3.
        210. See id.  3-501.17 (requiring that potentially hazardous ready-
     to-eat foods be ``clearly marked to indicate the date or day by which
     the food shall be consumed on the premises, sold, or discarded'').
        211. See Guidance on Labeling of Foods That Need Refrigeration by
     Consumers, 62 Fed. Reg. 8248, 8251 (Feb. 24, 1997). See also
     Quantitative Assessment, supra note 198, at xv (noting that
     ``reformulation of products to reduce their ability to support the
     growth of Listeria monocytogenes or encouraging consumers to keep
     refrigerator temperatures at or below 40 Fahrenheit'' are important
     parallel interventions); Ransom, supra note 18, at 1772 (``[T]he impact
     of temperature on the risk of listeriosis [is] significantly greater
     than the impact of time.'').
        212. Quantitative Assessment, supra note 198, at xii.
        213. Id. at xiv.
        214. Id.
        215. Id. at viii.
        216. Conn. Agencies Regs.  19-13-B42(m)(1)(F) (2012).
        217. Listeriosis (Listeria) and Pregnancy, Centers for Disease
     Control and Prevention, http://www.cdc.gov/pregnancy/infections-
     listeria.html (last visited Aug. 10, 2013).
        218. The need for targeted, tailored interventions is reinforced by
     the complexities inherent in implementing any regulatory labeling
     scheme. See Ransom, supra note 18, at 1762, 1768.
        219. A similarly tailored approach can be seen in the FDA's
     regulation of infant formula, which is a discrete category of products
     for which specialized labeling regulations have been successfully
     implemented at the Federal level. FDA mandates date labels on infant
     formulate to ensure product quality--not microbial safety. See 21 CFR
     107.20 (2013) (``A `Use by ___' date, the blank to be filled in with
     the month and year selected by the manufacturer, packer, or distributor
     of the infant formula on the basis of tests or other information
     showing that the infant formula, until that date, under the conditions
     of handling, storage, preparation, and use prescribed by label
     directions, will: (1) when consumed, contain not less than the quantity
     of each nutrient, as set forth on its label; and (2) otherwise be of an
     acceptable quality (e.g., pass through an ordinary bottle nipple).'').
        220. Buzby & Hyman, supra note 7, at 561.
        221. Bloom, supra note 2, at xii.
        222. Id.
        223. Buzby & Hyman, supra note 7, at 566. (stating that per capita
     food loss is $390/year, putting the total food loss per family of four
     at $1,560/year). Another study, using 2009 USDA price data, calculated
     the average annual value of avoidable food loss to be $1,600 for a
     family of four. Kumar Venkat, The Climate Change and Economic Impacts
     of Food Waste in the United States, 2 Int. J. Food System Dynamics 431,
     441 (2011).
        224. Bloom, supra note 2, at 187.
        225. Bloom, supra note 2, at 187; Gunders, supra note 1, at 12.
        226. See Hall, et al., supra note 9, at 2.
        227. See Envtl. Prot. Agency, Municipal Solid Waste Generation,
     Recycling, and Disposal in the United States: Facts and Figures for
     2010, at 6 (2010), available at http://www.epa.gov/osw/nonhaz/municipal/
     pubs/msw_2010_rev_factsheet.pdf. 228 Wastes: Reducing Food Waste for
     Businesses, Envtl. Prot. Agency, http://www.epa.gov/wastes/conserve/
     foodwaste/ (last visited Apr. 18, 2013).
        229. See Hall, et al., supra note 9, at 3.
        230. WRAP, supra note 12, at 9.
        231. Ransom, supra note 18, at 1763.
        232. Van Garde & Woodburn, supra note 185, at 324-25.
        233. Blank, supra note 140.
        234. Raftery Resource Network, Inc., Expired Product Project,
     Developed for the Joint Industry Unsaleables Steering Committee of
     Grocery Manufacturers of America & Food Marketing Institute 2 (July
     2003) available at http://www.gmaonline.org/downloads/research-and-
     reports/expiredproducts.pdf.
        235. Interview with Doug Rauch, supra note 150; Interview with Jose
     Alvarez, former President and CEO of Stop & Shop/Giant-Landover,
     Professor, Harvard Bus. Sch., in Allston, MA. (Nov. 9, 2012).
        236. Nat'l Inst. of Standards & Tech., supra note 88, at 149.
        237. Telephone Interview with Mitzi Baum, Dir. of Food Safety,
     Feeding America (Mar. 28, 2013).
        238. Examples include Lovin' Spoonful, http://
     www.lovinspoonfulsinc.org (last visited July 3, 2013) (food rescue
     organization based in Boston); Food Recovery Network, http://
     www.foodrecoverynetwork.org (last visited July 3, 2013) (organization
     with multiple chapters across college and university campuses in the
     United States); and Second Harvest, http://secondharvest.ca (last
     visited July 3, 2013) (a large-scale food recovery operation based in
     Toronto).
        239. See Gunders, supra note 1, at 11; Bloom, supra note 2, at 165;
     see also Serri Graslie, Buying Food Past Its Sell-By Date Tough To
     Swallow For Greeks, NPR (Oct. 23, 2012), http://www.npr.org/blogs/
     thesalt/2012/10/23/163469018/buying-foodpast-its-sell-by-date-tough-to-
     swallow-for-greeks?sc=emaf (last visited July 3, 2013) (describing
     efforts by the Greek Government to encourage food stores to discount
     past-date foods).
        240. For example, in eastern Pennsylvania, the Amish legally operate
     several stores that sell ``expired'' food at discounted prices. See
     Ryan Owens, High Grocery Bills? Get Great Deals on Dated Food, ABC News
     (Mar. 3, 2008), http://abcnews.go.com/Business/
     story?id=4472941&page=1#.TsNA9Zz6ZWJ (last visited July 3, 2013).
        241. See Graslie, supra note 173.
        242. Telephone Interview with Mitzi Baum, Dir. of Food Safety, and
     Wayne Melichar, Manager of Food Safety, Feeding America (Nov. 20,
     2012).
        243. Telephone Interview with Jonathan Bloom, author of American
     Wasteland (Oct. 4, 2012).
        244. Interview with Mitzi Baum, supra note 237.
        245. See, e.g., Bill Emerson Good Samaritan Food Donation Act, 42
     U.S.C.  1791 (1996).
        246. Interview with Mitzi Baum, supra note 237.
        247. See Ransom, supra note 18, at 1763.
        248. Directive 2000/13/EC, supra note 166.
        249. Dep't for Env't, Food & Rural Affairs, supra note 169, at 7.
        250. See id.; WRAP, supra note 12, at 10 (noting that ``one study
     suggests that, although `display until' dates are understood correctly
     by the majority (81%), they are used by some consumers to judge food
     quality (20%) and safety (6%)'').
        251. Dep't for Env't, Food & Rural Affairs, supra note 169, at 7.
        252. See, e.g., interview with Doug Rauch, supra note 150; Bloom,
     supra note 2, at 163-67 (discussing the solution proposed by Hilary
     Benn and Phil Lempert to obscure sell-by dates).
        253. Food Mktg. Inst., The Sustainability Opportunity for Retail and
     Wholesale Executives, Improving Supply Chain Practices for Open Dated
     Products (2007), available at http://www.fmi.org/forms/store/
     ProductFormPublic/search?action=1&Product_productNumber=2202.
        254. Notably, USDA regulations currently allow manufacturers to
     optionally include this kind of ``qualifying'' language on their date
     labels. See 9 CFR  381.129 (2013); 9 CFR  317.8 (2013).
        255. See, e.g., 21 CFR  101.93 (2013) (mandating disclaimer for
     certain dietary supplement claims).
        256. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
     Product Dating, supra note 54.
        257. WRAP, Freezing refrigerated food--Labelling decision tree
     (2011), available at http://www.wrap.org.uk/sites/files/wrap/
     Freezing%20decision%20tree.pdf.
        258. FDA's infant formula regulation requires that manufacturers set
     a ``use by'' date ``on the basis of tests or other information''
     showing that the formula will remain of sufficiently high quality
     ``under the conditions of handling, storage, preparation, and use
     prescribed by label directions.'' 21 CFR  107.20(c) (2013).
        259. See U.S. Dep't of Agric., Recommendations of the National
     Advisory Committee on Microbiological Criteria for Refrigerated Foods
     19 (1990) (recommending that ``KEEP FROZEN'' and ``MUST BE KEPT
     REFRIGERATED'' warnings be affixed to food packages and that they be
     accompanied by a ``corresponding logo''). See generally Ransom, supra
     note 18, at1761.
        260. 9 CFR  317.2(l) (2013); 9 CFR  381.125(b) (2013). See also
     U.S. Dep't of Agric., Kitchen Companion: Your Safe Food Handbook 10
     (2008), available at http://www.fsis.usda.gov/PDF/
     Kitchen_Companion.pdf. See also U.S. Dep't of Health & Human Servs.,
     Food Safety, Keep Food Safe, available at http://www.foodsafety.gov/
     keep/index.html (last visited, July 20, 2013).
        261. Id. at 1883; interview with Dr. Theodore P. Labuza, supra note
     172.
        262. See Pal, et al., supra note 207, at 1883.
        263. Interview with Dr. Theodore P. Labuza, supra note 172.
        264. Pal, et al., supra note 207, at 1883.
        265. See, e.g., Waste Watch: Food Fresh Labels, Insignia
     Technologies, http://www.insigniatechnologies.com/portfolio-view/
     wastewatch-food-fresh-indicators/ (last visited July 15, 2013); The UWI
     Label, UWI Technologies, http://www.uwitechnology.com/pages/label.html
     (last visited July 15, 2013).
        266. Labuza & Szybist, Current Practices and Regulations, supra note
     111, at 27.
        267. In the 1970s, FDA had even asserted that it had the ability to
     regulate date labels under its existing labeling jurisdiction, without
     the need for additional amendments to the FD&C Act. FDA has broad
     powers to regulate misbranded food, including misleading labels, under
     the FD&CA. 21 U.S.C.  331(b) (2012). See also 21 U.S.C.  343 (2012).
     See Gov't Accountability Office, supra note 19, at 49.
        268. 21 U.S.C.  321(n) (2012). See also 21 U.S.C.  341 (2012).
        269. See Nat'l Inst. of Standards & Tech., supra note 88, at 154-56.
        270. Kosa, et al., supra note 177, at 1218; Ransom, supra note 18,
     at 1763.
        271. Van Garde & Woodburn, supra note 185, at 329.
        272. See Fact Sheet: Refrigeration and Food Safety, U.S. Dep't of
     Agric., http://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-
     education/get-answers/food-safety-fact-sheets/safe-food-handling/
     refrigeration-and-food-safety/CT_Index (last visited August 2, 2013)
     (providing guidelines regarding the importance of refrigeration and
     types of bacteria in refrigerated foods).
        273. Van Garde & Woodburn, supra note 185, at 329.
        274. See, e.g., FoodKeeper Guide, FMI, available at http://
     www.fmi.org/consumer/foodkeeper (last visited July 3, 2013).
        275. See, e.g., U.S. Dep't Agric., Kitchen Companion: Your Safe Food
     Handbook 14 (2008), available at http://www.fsis.usda.gov/PDF/
     Kitchen_Companion.pdf (outlining different ways to ensure food safety).
     See also U.S. Dep't of Health & Human Servs., Food Safety, Keep Food
     Safe (last visited, July 20, 2013), available at http://
     www.foodsafety.gov/keep/index.html.
        276. According to Federal law, infant formula must include a ``use
     by'' date. However, states that further regulate this by banning or
     restricting past date sales of infant formula are identified in this
     appendix. 21 CFR  107.20 (2013).
        277. Nat'l Inst. of Standards & Tech., U.S. Dep't of Commerce,
     Handbook 130: Uniform Laws and Regulations in the Areas of Legal
     Metrology and Engine Fuel Quality 13 (2013).
        278. Infant formula is federally regulated and requires a ``use by''
     date in all states. 21 CFR  107.20 (2013).
        279. Infant formula is federally regulated and requires a ``use by''
     date in all states. 21 CFR  107.20 (2013). Georgia's regulations
     contain additional language restricting sales after the ``use by''
     date.

        The Chairman. Well, thank you, and good recovery from my
    rudeness.
        The chair reminds Members that they will be recognized for
    questioning in order of seniority for Members who were here at
    the start of the hearing. After that, Members will be
    recognized in order of arrival. And I appreciate Members'
    understanding. I recognize myself for 5 minutes.
        Sitting here listening to you, I suddenly realized that I
    was among some early adopters of this issue, not wasting food,
    in the sense that as a young MP at Fort Hood, we would race
    across Fort Hood with sirens blaring and red lights flashing to
    get to the McDonald's at 2 o'clock in the morning to get all
    the unsold Big Macs, that we would then take them back to
    headquarters and pass them around to our colleagues. So early
    on, I was an early adopter. In addition to growing up in a
    family where nothing was wasted.
        Ms. Aviv, would you talk to us a little about the struggles
    or challenges, differences between rural food banks and urban
    food banks in the sense of produce, how they get access to it?
    We have heard how some of the small retailers in rural America
    have a hard time getting produce. Can you talk to us about how
    food banks in urban and rural are approaching those challenges
    differently?
        Ms. Aviv. The challenges facing rural food banks are
    different than those of urban food banks. Just transportation
    alone is probably one of the biggest challenges. Recently, I
    had the opportunity, since I am relatively new to Feeding
    America, to go around the country and have listening sessions,
    and in the sessions that brought together most of the rural
    food banks, the number one challenge that they saw, that they
    faced was transportation. In fact, they asked for us to find
    donations for replacement of their tires because they have to
    travel such far distances.
        But it is not only on the side of the distribution of the
    food, it is also with regard to the people who are facing
    hunger, their ability to be able to get together and come to a
    central location to receive the food is also a challenge. I
    don't think it is a challenge that we have solved.
        Also, because most of the people facing hunger, or more of
    them, are in cities and in concentrated areas, there may be an
    inclination to want to go to where most of the people are, but
    yet the needs in the rural communities are just as great. We
    have a balance issue when there are limited resources.
        The Chairman. We did have one retailer talk about the idea
    of setting up centralized points within the rural communities
    where they could take the donated produce there.
        Ms. Stasz, you said that we have some 40 different state
    rules or regulations with respect to labeling. Would you and
    your team be supportive of a Federal preemption of all of those
    various state rules and regulations?
        Ms. Stasz. Yes, a national standard is really crucial.
    Emily did a really good job of pointing out the complexity that
    is existing now. As we think about if there is going to be
    regulation, then Federal preemption would be really critical to
    streamlining that process and reducing consumer confusion. And
    we thank Ms. Pingree for all of her work on this really
    important issue, and really starting the conversation.
        The Chairman. Well, thank you. I do believe the statute of
    limitations has run on anything I might have just confessed
    too, with respect to my conduct at Fort Hood.
        So with that, I will yield back. And I recognize the
    Ranking Member for 5 minutes.
        Mr. Peterson. Well, thank you, Mr. Chairman.
        Do all of you agree that, to get to our goal here, we need
    a Federal preemption on state laws? Do any of you disagree with
    that? Silence.
        The Chairman. It is going to be hard for the stenographers
    to write that down.
        Ms. Broad Leib. I am happy to agree with that. As we have
    discussed, when we started looking at state laws on date
    labels, we looked at a handful in New England and they were all
    different, and the more we zoomed out and looked across the
    country, it is very clear that they are not based on some sort
    of standard safety information, so it makes sense to have one
    standard that everyone can follow.
        Mr. Peterson. Yes, so you would have to have a Federal
    preemption in order to accomplish that.
        Ms. Broad Leib. Yes.
        Mr. Peterson. Right.
        Ms. Broad Leib. I think so.
        Mr. Peterson. I am a little bit concerned about how this
    would work, because we have so many people involved in trying
    to use the labeling and marketing of food, and they have the
    consumers to the point where they don't know what the heck is
    going on. And it just concerns me, like this GMO issue, they
    are opposing preemption of that because some people think that
    it is a good thing for the states to have these different laws,
    which goes completely opposite of what we are talking about
    here. And then you have these folks out there doing these
    Dietary Guidelines, and trying to push all of that stuff, and
    we have a bill that has been introduced that puts the food
    police in charge of the Agriculture Committee that are pushing
    all kinds of ideology, whatever it might be, it is confusing
    the heck out of people. You have people labeling things
    natural, and using it to create specialty stores and so forth.
    And so I am just concerned that if we pass this bill that says
    you are going to have two dates; one is best by, and the other
    is expires on. I agree that we need to do this, and that it is
    a good thing to do. If we could accomplish it, it would be
    probably the best solution to addressing food waste and could
    change things.
        But in the bill, it says expires on is the date for, not
    the quality but, the safety date. I don't think that consumers
    would understand what that means. You almost have to say do not
    consume after this date to get them to understand. We are
    putting so much stuff on this label that, all of these labels,
    that I am not sure it is going to break through, and make
    sense. So I don't know what you all think about that. Do you
    think I am off-base being concerned about all this?
        Ms. Broad Leib. I sort of have two answers, and then I will
    leave time if others want to jump in. First, in terms of this
    question about the information being out there. If you go to
    any store right now, even in the states that don't regulate
    date labels, like New York, almost every product, particularly
    in the center of the store, has a date label on it. Everything
    from bottled water to vinegar to canned goods, whatever. I
    think what is great about this is not taking information away.
    Consumers are used to seeing those, and they want to see them,
    it is just trying to make it clear so that they don't see a
    million different ones.
        You are right that no matter what those labels are,
    education is going to be needed. The problem right now is that
    because there are so many different labels, it is impossible to
    educate anyone about what they mean. I have tried. I would love
    to be able to say here is what you should glean from these.
        And then last, the term expires on actually was in the
    national survey that we did last month that I mentioned. We
    checked six different label language, and expires on, 54
    percent of people believe that was a safety label. That was
    higher than any other one. And they were also the lowest
    percentage of people that thought it was a quality indicator.
    So again, 54 percent isn't a lot, but it is a start, and with
    education it could be built upon that.
        Mr. Peterson. Yes. Go ahead.
        Ms. Stasz. Just if I may really quickly. I do think you
    really hit the nail on the head in that we want to get this
    right the first time. Right? We don't want to further
    contribute to consumer confusion. We want to make sure that we
    are testing consumers to make sure they understand what we are
    trying to convey, coordinate with other labeling changes that
    are coming down the line, like the Nutrition Facts Panel, and
    really have industry flexibility to truncate the phrase, make
    sure it fits on small packaging, in order to make sure that we
    are harmonizing our standards and our language and conveying
    the right information to the consumer.
        Mr. Peterson. Well, I would say amen to that. And if you
    have read this bill, I am concerned. I agree with the goal, but
    I am concerned about the way this thing is structured, that you
    are going to get these different agencies involved in this, and
    by the time you are done, you are not going to recognize what
    you tried to accomplish.
        I have seen that with the farm bill. When I passed the farm
    bill, by the time we got done with regulations, I didn't
    recognize what we had passed. We have to be careful about how
    we do this. I agree with what we are trying to accomplish, but
    if you get too many agencies involved and allow too much
    whatever, you are going to end up potentially with a worse
    situation.
        I yield back.
        The Chairman. The gentleman yields back.
        Mr. Kelly, 5 minutes.
        Mr. Kelly. Thank you, Mr. Chairman and Ranking Member. And
    thank you, members of the panel.
        First of all, I just want to say we have a lot of food
    pantries. I am from Mississippi and we have a lot of rural
    areas, and our food pantries do such a great job, and so any
    kind of reduction; second, I very rarely do this and she will
    probably kill me, but my wife volunteers for Meals On Wheels
    all the time, to take these meals to the elderly or people who
    can't travel, and those things. And she never gets recognized.
    We have been married for 25 years, and it seems like she is
    always behind the scenes, but my wife, Sheila, just does a
    great job. And we need more of that because there are a lot of
    people who really want to help people and get this food in the
    right hands.
        As a child growing up, my mother used to go to the stale
    bread store in town and would buy up the donuts and things that
    we necessarily couldn't afford, or bread or other buns and
    those kind of things, and then she would freeze them and we
    would eat them all year. And as kids, we didn't know any
    different. It was still good food. The things that most people
    threw away we got to eat. So I thank you all for doing this.
        And, Ms. Stasz, I think I got that right, to what extent is
    the industry engaged in coordinating efforts to promote uniform
    labeling?
        Ms. Stasz. We are very engaged. This is a GMA and FMI board
    level initiative right now. We have 25 companies who are
    working on this to make sure that we really get this right the
    first time. Make sure that the information that we are
    conveying to consumers is accurate, and it is the right kind of
    information. But this is a really important issue for us and it
    is something that we are taking very seriously.
        Mr. Kelly. As a follow up on that, when we create things
    here, we don't always get the right results because we don't
    have the baseline of knowledge that is necessary, we are not
    the professionals in every area, and we have such a broad range
    of things. So when you guys create the right things for
    yourselves, it prevents us from doing the wrong thing. With
    good hearts and good minds in trying to do the right thing, but
    we sure appreciate your input.
        And how do your manufacturers in your organization now work
    with different date labeling laws in each state, and what
    limitations does it put on you because of these laws?
        Ms. Stasz. It is certainly onerous. I mean our member
    companies are obviously complying with state law, but it does
    tend to create a lot of unintended consequences. Ms. Aviv
    really highlighted some of the confusion at the food bank
    level, and there are different foods that wind up getting
    thrown away unnecessarily.
        There is certainly a call for, and a reason for, a national
    standard that the industry is working towards to reduce
    consumer confusion and prevent some of these unintended
    consequences of these laws.
        Mr. Kelly. And, Ms. Aviv, to what extent have potential
    food donors raised liability concerns to you about a reason to
    withhold donations?
        Ms. Aviv. Thank you. Congressman, I think that the issue
    that we see is lack of knowledge, where people new to this
    space who want to help and want to contribute argue that they
    can't because they won't be protected, and that it is almost a
    one-by-one-by-one education, unless we can create a systematic
    way to engage in this kind of work.
        I was most recently at a conference organized by Ohio State
    University with all of its alumni, and so on, and the alumni
    sitting there talking about food insecurity, people sitting at
    the front table said that they were reluctant to get involved
    in this because there were liabilities. And these were people
    who were leaning into this area. So I don't think we should
    underestimate the degree to which there are people not engaging
    because they think they are not protected.
        Mr. Kelly. And the final question for Mr. Oxford. So-called
    ugly fruit and vegetables in many cases have less value in the
    so-called marketplace. What other opportunities, you talked
    about some, but if you can just talk about what opportunities
    to the industry exploring to add value to these products.
        Mr. Oxford. Well, you mentioned the ugly fruit, and that
    has been a growing movement across the industry, one that we
    participated in, and a lot of retailers are helping to do that,
    and I mentioned the food service side is getting involved with
    it as well.
        And one of the things you have to keep in mind on that is
    how things are positioned in the stores or at the food service
    level. And we believe there is great opportunity, and it is a
    huge waste. From our standpoint as a grower, we hope every
    fruit, stem, and leaf ends up on someone's plate. So just
    trying to do anything that we can to make those products
    available is what we are trying to do.
        Mr. Kelly. And just a final anecdote. My dad, growing up,
    he would not eat white corn. He didn't like it. And so my
    mother put food coloring in it, and he said this is the best
    corn I have ever had. So sometimes our price pointing and other
    things make it better.
        And I yield back, Mr. Chairman.
        The Chairman. The gentleman yields back.
        Mr. David Scott, for 5 minutes.
        Mr. David Scott of Georgia. Thank you, Mr. Chairman. This
    is a real, very serious problem here, and I appreciate you, Mr.
    Chairman, for pulling this together.
        But there seems to be two fundamental areas here that we
    need to address. The first one is how do you change human
    behavior. That is the big issue here. The second big one is how
    do we address this issue of where the food waste starts on the
    farm. And I represent Georgia, and we are the leaders in the
    nation, perhaps the world, of growing blueberries. The problem
    is that so much of those blueberries are left wasted, rotting
    in the fields because we have failed to address the number one
    issue that we here in Congress can do to address food shortage,
    and that is to make sure our agriculture and our farmers, those
    who are producing our crops like blueberries, have the adequate
    supply of labor to be able to harvest them. So we have to do
    something about that first.
        The second point on that is how do we coordinate a better
    relationship with that, if it is an oversupply, our farmers
    would gladly, at a much reduced cost, rather than see those
    crops rot in the field, get them to our food banks, like the
    Atlanta Food bank, which is one of the more premiere food banks
    with over 75 million pounds of food put out each year. That
    takes good management resource allocation.
        Now, the other one is how do you get to the real people,
    because about 80 percent of the problem, if we solve it at the
    first end of helping stop the food shortage of food rotting in
    the fields, because they can't get the labor because we failed
    to address immigration from an economic agriculture supply
    labor standpoint. When we get to the changing of the human
    behavior, we have to get into a coordinated partnership with
    the media, with television, with radio, to be able to change
    human behavior, educate the public.
        Now, we did this with smoking, so it can be done. We
    changed that human behavior. Many people say you are not going
    to be able to change people, but there was a coordinated effort
    with the leaders in the media industry to help with the kinds
    of public announcements, commercials that we could.
        So I would like to get your response to that. First, let's
    address, am I right on this labor issue, Mr. Oxford?
        Mr. Oxford. Without a doubt, one of the biggest challenges
    for us as growers is not having adequate labor to harvest the
    crops at times. And when we leave crops in the field, sure, we
    can disk them in and use those as nutrients for the soil, but
    that really means the crop is not going to its highest and best
    use, which is feeding people.
        Mr. David Scott of Georgia. Yes. And how about your
    ability, am I right in assuming that you would be able to work
    with food banks in a much better resource allocation way to be
    able to get that food so it gets to the needy people, rather
    than rotting in the fields?
        Mr. Oxford. Absolutely. And we already do, as I mentioned
    in my testimony, supply hundreds of thousands of pounds to food
    banks annually ourselves, a product that doesn't meet
    specifications for the customers that we have and so forth.
    But, distribution is a big part of the equation that has to be
    figured out. There are no silver bullets here. It has to be a
    collaborative effort from all parts of the supply chain.
        Mr. David Scott of Georgia. Right. And now, the reason I
    mentioned the human behavior as I looked at this, clearly, 45
    percent of food is wasted at the dinner table. And, Mr.
    Chairman, it might be helpful if we began to address a way in
    which we can coordinate some resources at the Federal level to
    help get public service announcements, to get and work with
    many of our partners in the media and engage them, much as the
    same way we did in changing the human behavior of smoking.
        Thank you, Mr. Chairman. I yield back.
        The Chairman. The gentleman yields back.
        Chris Gibson, 5 minutes.
        Mr. Gibson. Thanks, Mr. Chairman. I appreciate this
    hearing.
        And I just want to come in behind Mr. Scott and concur with
    his statements. And I appreciate the Chairman, I know he has
    been looking at this too. We have a number of Members on the
    Committee who have been concerned about ag labor, serious
    issues there. I have introduced a bill on this. I certainly
    don't claim that it corners the market on any ideas here. In
    fact, I think perhaps at this time, maybe what we should do as
    a Committee is just to have a hearing and look into it more.
    And I know the Committee is looking at that, and I appreciate
    that.
        The second is, and I apologize, I was a few minutes late,
    but I did learn from the testimony from Ms. Broad Leib, I was
    interested to hear your comment, really your analysis of the
    Emerson Act, which is, from what I hear from you, very helpful
    in its intent, but perhaps needing some refinement, some
    amendments. And I thought you were very clear in what could be
    done. And I certainly would be supportive of an effort on that
    score. I just want to make that comment.
        And then third, and this is really the question, I am
    curious for the panel, in your experiences, have you seen any
    best practices as far as information is concerned, a not-for-
    profit that is a clearinghouse in a community where all
    restaurants and farmers can provide information about what they
    have so there is sort of in a community, there is a place where
    people can go and say, ``Well, here is our inventory of all the
    perishables and the nonperishables, what is available.'' Has
    anybody seen anything like that?
        Mr. Fink. Yes, in addition to what Feeding America is doing
    with their new platform, there are a few other local start-ups
    that are doing it. There is a small company based in Boston
    that is doing it for New England right now, that is creating a
    platform that has knowledge of tractor trailers that are being
    rejected at particular places, and are not going to find their
    intent, and then matching those with locations that could use
    that. So there are large organizations like Feeding America,
    and there is a lot of innovation that is happening at the local
    level as well.
        Ms. Aviv. I would say that there are lots of efforts by
    Feeding America to try and get to the very issue that you have
    raised. Obviously, part of the challenge that we face is to
    make sure that this whole food labeling issue is not an
    unimportant issue, because we want to be sure that the food
    that gets picked up is then put in, if it is perishable, it is
    put in a refrigerated truck, is transported to a safe place, is
    housed in a safe place, before it is distributed, so that even
    as we are very encouraged by efforts of small groups to do the
    same thing, we want to be sure that we have a safe protected
    standard, because if we have stories that come out of somebody
    getting food poisoning or something as a result of this, that
    might be perceived by the public as the tip of the iceberg,
    when, in fact, it was an isolated incident. So we have to
    proceed here quite carefully.
        Our effort with Starbucks that we are now going to do over
    the next 5 years and hundreds and hundreds of stores, will give
    us an opportunity to test this effort, because it is a small
    amount of food from each store, but they are incentivizing us
    through providing us with enough financial support to be able
    to purchase refrigerated trucks, so that the food banks can go
    by and pick that food up every single day. Multiply that by
    every store in the cities, in a variety of cities that have
    food left over, we have to make sure that the infrastructure,
    or the people that pick it up, are picking it up and carrying
    it safely to the place where it then can be distributed to
    people who need food.
        So it is a logistics and transportation and safety issue.
    It is not a lack of will issue.
        Ms. Gunders. Just to add to that, there is quite a bit of
    innovation on that front. There is a startup in Chicago that
    has been training Uber and Lyft drivers in safe food handling
    practices, and then allowing restaurants to broadcast via text
    to a number of food pantries until someone accepts it, and then
    they bring it over very quickly so that it can get to people
    quickly.
        And I would say that there is a long tail to the food
    wasting. There are big organizations and sometimes they have
    large quantities, but there is also a lot of small restaurants
    and such that have small quantities, but it is still worthwhile
    to donate. As Mr. Fink mentioned, really encouraging the
    innovation there can serve that sort of long tail.
        Mr. Gibson. I thank the panelists. And my time has expired.
    Thanks, Mr. Chairman.
        The Chairman. The gentleman's time has expired.
        Mr. Walz, 5 minutes.
        Mr. Walz. Thank you, Mr. Chairman. And thank you, all of
    you. This is a critically important topic. Thank you to my
    colleague, Ms. Pingree, who I have had the honor and pleasure
    of sharing a meal at her home over this. She takes this to
    heart, and takes food as an important part of our cultural
    life.
        Which kind of brings me back to what Mr. Scott and Mr.
    Kelly, and you are hearing it up here, are saying, I am, by
    training, a cultural geographer. This is an attitude issue as
    much as it is a logistics. I think these are important from
    labeling and all that, you are really getting at it, but it is
    interesting when you hear people up here talk, those of us of a
    certain generation, there is a pride in the thriftiness around
    food. I come from a family, until I was 12 years old, I thought
    head cheese was really cheese that my mom was making. And when
    we found out, we still ate it, but it was the idea of that
    sense of waste that was probably passed on from a previous
    generation where food insecurity was a real threat to them. And
    you see this around the world. And so I do think getting at
    that because there are some really interesting phenomena here.
    We take great pride out in southern Minnesota that we feed and
    clothe and fuel the world, and we have the most efficient
    producers of food the world has ever seen. And so because of
    that, and then working in conjunction with all of you, and, Ms.
    Stasz, your organization, you have become so incredibly
    efficient at delivering foods from all over the world to our
    local grocery store and to our homes that it has changed that
    cultural perception. Not that we have gotten lazy or whatever,
    we don't have to be as thoughtful about it. And I am amazed
    this week of looking at it when I go to shop for bananas, it is
    a fine art because I don't want them green because I want to
    eat them that night, but when I buy them yellow they are bad
    the next day, almost. And it is really that supply chain along
    there that we are trying to get at.
        So I am curious, Mr. Scott was talking about putting things
    out in the public, public awareness and all that, but, Ms.
    Gunders, you did this right, and if anything I have learned
    from this job, and as a school teacher too, Maslow's hierarchy
    of needs, appeal to the bottom of the hierarchy first, how it
    impacts their safety, their pocketbook, and things like that,
    and then they will eventually self-actualize, this is the right
    thing to do, it saves the planet, it saves those types of
    things.
        Are we getting at the heart of the things that can make a
    difference at the bottom of that for people? Is the food
    labeling one of those? And then maybe throw it out to each of
    you for some of your points on this.
        Mr. Fink, you talked about the data, which I think is
    incredible what you have been able to do to gather data on
    this, but it is very hard. And then maybe the last one to you,
    Ms. Aviv, how do USDA food inspectors interact with food banks
    and some of these on the large scale, because I have some
    fantastic ones in Minnesota that do some really incredible
    field-to-plate type of things?
        So I know that is very broad and general, but the rest of
    the country is maybe catching up where all of you are at, and
    there are win-win-wins in this if we get this right. This is
    one of those issues that are incredibly positive, economically,
    health-wise, reducing government spending on things that all of
    us want to see done.
        So I will leave my last 2 minutes for you to give us some
    points on that. I know it is very generalized, but we have to
    get at this.
        Ms. Gunders. Yes. So as I mentioned, NRDC has partnered
    with the Ad Council on a campaign to try to shift the cultural
    paradigm around food waste. It is absolutely correct that if I
    walk down the sidewalk right now and I throw half a sandwich on
    the sidewalk, people will think I am crazy because I am
    littering, but if I throw it in the garbage can, people won't
    quite think much of it. And that is really the paradigm that we
    are trying to shift.
        There was over 12 months of research that went into the
    campaign, and found things like people don't know they are
    wasting food. If you ask somebody if it is okay, nobody will
    say yes, but nobody realizes they themselves are doing it, and
    it is kind of flying under the radar. And the other thing is
    that it is a byproduct of sort of peoples' good intentions. You
    want to host a good dinner party, you want to feed your kids
    healthy, fresh food, and there is this byproduct of waste. So
    the campaign is trying to create kind of a wake up call that,
    yes, this is happening, and then also create a positive message
    that this is something people can get onboard to do better, and
    trying to shift that culture.
        And so we are trying to get at some of the motivations
    behind it through really positive messaging and empowering
    people to make changes in their kitchens, because a lot of it
    is happening right there.
        Mr. Fink. I think your question had to do a little bit
    about the data and what do we do with it. The intent of ReFED
    was actually to comb the data that was out there and to create
    this advisory council of the 30 experts from all the different
    industries and nonprofits to understand the data, and to create
    a roadmap with essentially an action plan of what are all the
    areas where food is being wasted, and what are the solutions,
    and how can investment be made in one case to accomplish that.
    And that is where we came up with the 27 solutions. And there
    are investment opportunities for private investors, for
    philanthropic organizations like foundations that can make
    grants to Feeding America, and other nonprofits, and for
    corporations to make investments in their own infrastructure.
        So the first step was collecting the data and creating the
    roadmap. Now, it is an opportunity for individual organizations
    to figure out how they can invest in the solutions.
        Mr. Gibson. Well, thank you. Maybe if we get a second
    round, I will wait until my time is up to come back around. I
    want to explore the economic potential that comes from this,
    and how you are already doing that.
        The Chairman. The gentleman's time has expired.
        Mr. Moolenaar, 5 minutes.
        Mr. Moolenaar. Thank you, Mr. Chairman. And I also want to
    thank you all for being here.
        Just this number of 40 percent is pretty staggering. And I
    wonder if most people wouldn't be aware of that, and if there
    was one takeaway that you wanted me to be able to communicate
    back in my district from each of you, as you have been thinking
    about this today, and throughout your work, what would that one
    takeaway be that you would want me to be able to communicate?
    Because that number is pretty staggering. And then when you
    look at the supply chain aspect of it, it becomes a much more
    complicated issue in terms of how to resolve. But is there one
    thing that you would want me to be able to communicate in my
    district? And maybe just go right down the panel.
        Ms. Gunders. I think it is that this is very addressable,
    and it just takes easy steps to do it. It can be overwhelming
    when you think too much about it, but ultimately, if everyone
    cares about this and we all think food shouldn't be wasted, it
    won't be as much.
        Mr. Fink. I would say that most people are not aware of how
    much food they waste personally, and that this problem can be
    solved starting so much by the consumer, and then the consumer
    can push that to restaurants and to retailers.
        Mr. Oxford. What I would say is that there is a
    misperception with a lot of consumers that if the fruit or the
    vegetable doesn't look just absolutely perfect in the store
    when they are picking it out, then it can't be good. And that
    is simply not true. And so support for and encouragement of
    some of the imperfect or the unusual-looking fruits and
    vegetables, that those are still very healthful products for
    consumers, would be terrific.
        Ms. Stasz. And I would say the number one takeaway is the
    importance of measurement. Whether you are a business, whether
    you are a household, a city, a state, understanding, getting
    some numbers behind how much food you are wasting, you
    immediately find opportunities to improve. I for one need to
    stop buying grapefruits. Right? I just don't eat them. I can
    understand how much money I save as soon as I track that every
    week. And I think that measurement is far and away the best
    practice.
        Ms. Aviv. I think there are no silver bullets here. Because
    we can't solve all of it, doesn't mean that we shouldn't try
    and solve some of it. And one step at a time will get us all
    the way there.
        One of the great successes, in regard to this area, that we
    think is helpful was the passage of the tax legislation that
    made the donation of food by small businesses and possibly,
    incentivizing them to give. So instead of that food going to
    waste, now, because of this charitable tax deduction, they can
    donate that. If we can educate our farmers and our small
    business people in the communities about this opportunity, we
    can save a heck of a lot, and that will be the first step of
    many that we can take.
        Ms. Broad Leib. And I would say sort of two. First, on date
    labels, that for the most part, foods are really indicating
    quality to you, and that hopefully you can say you are working
    on trying to make them clearer. And I think the other on the
    liability. I mentioned the Emerson Act is incredible. I mean it
    is an enormous amount of protection, and the biggest challenge
    is that businesses don't know about that. And having
    Representatives from Congress say to them we have this
    legislation, you are really protected, this is a priority for
    us, could go miles in getting more people to feel comfortable
    donating food.
        Mr. Moolenaar. Thank you very much. I appreciate it.
        I yield back, Mr. Chairman.
        The Chairman. The gentleman yields back.
        Ms. Fudge, 5 minutes.
        Ms. Fudge. Thank you very much, Mr. Chairman. And thank you
    all so much for being here.
        Mr. Chairman, let me just take a point of personal
    privilege. Today is Congressional Foster Youth Shadow Day, and
    today I have a foster student with me. Her name is Regine
    Jordan Wells, who was in the system for 5 years, and is now a
    student at Cleveland State University. So let's welcome----
        The Chairman. Will she stand up and wave at us?
        Ms. Fudge. Regine.
        The Chairman. There she is. Welcome. Glad you are with us.
        Ms. Fudge. Thank you. And now to my questions.
        First, let me again thank you all. This has been most
    enlightening and very timely. Mr. Chairman, thank you for this
    hearing.
        Certainly, I do represent the Cities of Cleveland and
    Akron, and 20 cities in between. I represent one of the poorest
    districts in America, so this is extremely important to me. As
    I work closely with my food banks on a fairly regular basis,
    and have my staff go on a regular basis to assist and
    volunteer.
        So it is good, Ms. Aviv, to have you here, as I wanted to
    just remind you that earlier this year, Mr. Rodney Davis, my
    colleague from Illinois, and I did, in fact, request that the
    Appropriations Committee provide an additional $100 million for
    the cost of storing, transporting, and distributing food. We
    know that refrigerated storage, we know that moving food is
    very, very important to making this whole thing work, because a
    lot of times if it is difficult for them to donate the food,
    they won't do it. And so I just want you to be aware that we
    did it, and thank you for your assistance, Feeding America's
    assistance in helping us do that. And I am happy that my
    colleagues have heard today how important it is to make sure
    that we have the transportation and the refrigeration that we
    need.
        Ms. Broad Leib, we have been talking about the Emerson Act
    for some time this morning, but unlike other statutes, there
    has never been a Federal agency that really is over this
    particular Act. Would it help if, in fact, there was some kind
    of guidance by a Federal agency, would that make persons who
    come under this Act feel better?
        Ms. Broad Leib. I think so. One issue is really that there
    is a lack of awareness, which can also be addressed by having
    an agency that is really tasked with putting guidance out,
    telling people about it, sharing information. And then the
    other question, it is intended to be incredibly strong. If you
    read it, you can get that, but as an attorney myself, I can
    imagine if I were advocating on behalf of a company, looking at
    it and saying there are a few terms in here that are unclear.
    Apparently wholesome food, what does wholesome really mean? Is
    something that is past-date wholesome or not? There are other
    questions like that as well. The Act says, for example, that
    food has to follow Federal, state, and local quality and
    labeling standards, but some of the labeling standards are not
    related to safety. So even having an agency be able to say the
    allergens certainly are safety-related, that is important to be
    on food when it is donated, but if the net weight is wrong,
    someone who is going to get this food that is being donated, if
    it says it is 3 ounces and it is really 4 ounces, or vice-
    versa, that is not an issue.
        So there are a bunch of places like that where having an
    agency be able to provide clarity and raise awareness would go
    a really long way.
        Ms. Fudge. I mean I have heard on two occasions today that
    there is some role for the Federal Government, and I am happy
    to hear that. I am happy to understand that my colleagues would
    agree that we don't want to have 40 or 50 different states with
    all different rules. And second that, with the Emerson Act,
    there should be some, at least, interpretive guidance as to how
    it goes. So I thank you for that, and hopefully we can take
    care of some of those things.
        You talked about labor. I mean you kind of talk around it.
    Are you talking about immigration? What are you talking about?
        Mr. Oxford. Well, certainly, immigration is a part of the
    discourse. And I know that is a tough issue to tackle
    politically, but yes, that is a big part of it. It affects our
    ability to get the products grown and harvested and to the
    marketplace. And simplistically, we can probably either import
    labor or import our fruits and vegetables. And that is a tough
    pill to swallow sometimes, but yes, it is a big part of it.
        Ms. Fudge. Thank you very much.
        I yield back, Mr. Chairman.
        The Chairman. The gentlelady yields back.
        Mr. Yoho, 5 minutes.
        Mr. Yoho. Thank you, Mr. Chairman. I appreciate you all
    being here.
        And today, as you brought out, Ms. Fudge, the Foster Youth
    Shadow Program, we have one with us from the great State of
    Florida, Ms. Samantha Rodgers. If you would raise your hand up.
    She is a young lady doing great things, and congratulations for
    being here and sharing with us.
        Ms. Broad Leib, I wanted to hit on the Emerson Act. And you
    have talked extensively about it. And, to make it further to
    incentivize the tax things, and the clarification in laws, the
    work that you have done with that, if there is any
    recommendations that you can give us on this Committee that we
    could help draft that, that would surely facilitate that,
    because the incentives and the things that Ms. Aviv brought up,
    the tax incentives for people to be able to go ahead and donate
    those things, because we see it so often. And I grew up like
    Mr. Walz. I was from Minnesota. I have five brothers; four of
    them were older, and when we sat down all six of us, it was
    like puppies at the dish, and if you are the last one there,
    you didn't get anything. So there wasn't any food waste when we
    were growing up. And then growing up, I was on food stamps for
    a period of time, and we were good misers with that. And then
    my mom, she taught us how you saved all your food, and at the
    end of the week you had stew, and it was always really good.
        So saying that, being in the agricultural sector since I
    was about 15 years of age, we have seen a lot of waste. I have
    worked at produce markets, I have worked at loading docks, and
    then working with the farmers, we have seen the crops left in
    the fields. And so any recommendations you can give as far as
    things that we can do up here as far as legislation would be
    great along those lines.
        And then I have had a specific question here for Mr. Fink.
    You mentioned consumer education as a crosscutting action to
    reducing waste. Have you found any specific best practices in
    educating the consumers? And what have you found is the most
    effective ways to educate the consumer, not just the consumer,
    I wanted to add to that awareness in the industry. I know
    industry does a good job, from the grocery stores, the
    restaurants, to the farmers, and to the families, and is there
    any cooperation with USDA on public service announcements? Yes,
    sir.
        Mr. Fink. Thank you. The first question on the consumer
    side, we are getting a great start with the Ad Council and
    NRDC, and a few of the Congressmen mentioned ad campaigns over
    the years that have changed behavior, and I believe that this
    will do that. It is a start. It needs to be backed-up by
    companies providing awareness at supermarkets and at
    restaurants. There are chefs who are circling the Hill today
    who are interested in food waste, and chefs actually can play a
    role in changing peoples' behavior. So it starts with the Ad
    Council, but then companies can play a role, and the government
    can play a role.
        I would also say on the industry side, we have personal
    experience, we have a farm, and we collect leftover produce
    from the local market. Every day we go and there is a new
    person, and they are not doing it the same way. So employee
    training is huge. It was one of the things that came out of the
    ReFED was not just the consumer training, but employee
    training.
        Mr. Yoho. Okay, thank you.
        Ms. Stasz, you brought up the grapefruit, you buy some, and
    I have done that myself, we buy things that sometimes we
    shouldn't. And I mean that is just up to us and it is a cost-
    benefit analysis there that we have to make. Mr. Oxford, you
    brought this up too, the bruised tomato, nobody wants to buy
    that, but if you are in the restaurant business that is
    different, you can utilize that. And it is kind of like buying
    a new car, I don't want the one with the dent in it. And so,
    again, if the retail market or the restaurants move to, like on
    Wednesdays, it is Brunswick stew, because that is the
    leftovers, and those aren't the things that are the shiniest.
        Have you guys seen a difference in the handling of food
    waste in the rural versus the urban areas? In the grocery
    stores, restaurants.
        Ms. Stasz. Yes, I will say there are some marked
    differences, but overall the general bottom-line there is a
    real struggle with infrastructure. So depending upon what kind
    of business you are operating and where you are, urban or
    rural, your infrastructure options are going to be really
    different. Right? So if you are a restaurant and you have small
    amounts of pickup, you are going to have to get someone to come
    pick up that material really, really frequently if you are in a
    city, and then it has to go a really long way away to go to a
    composting facility or an anaerobic digestion facility, and you
    could lose your environmental benefit by putting it on that
    diesel truck.
        So, for all businesses, increasing infrastructure options
    to make sure we are meeting the 50 percent reduction goal is
    going to be really critical.
        Mr. Yoho. Okay. Thank you. I yield back.
        The Chairman. The gentleman's time has expired.
        Mr. McGovern, 5 minutes.
        Mr. McGovern. Well, thank you all for being here. This has
    been excellent testimony, and it is all common sense, and it is
    all doable. It doesn't seem like it is rocket science to be
    able to implement a sensible food waste policy in this country.
    If I have a suggestion, we should just put you all in a room
    where you write the policy and tell us to fund it, and then we
    are done, because you represent the vast array of the players
    that need to be at the table.
        A few weeks ago, I was invited by the Amherst Cinema in
    Amherst, Massachusetts, to react to a film they were showing
    called Just Eat It. It was about a couple that decided to live
    for 6 months on food waste. At the beginning of the film they
    thought they couldn't do it, they wouldn't be able to find good
    food waste to be able to live on. By the end of the film they
    gained 20 pounds because it was so plentiful. And they were
    able to eat relatively healthy, but they ended up eating a lot
    because they uncovered so much discarded food. They went to
    dumpsters in supermarkets and uncovered huge amounts of
    discarded food. They went into the supermarkets to try to buy
    food, like bananas that were being taken off the shelf, and
    they were told by the people at the supermarket they couldn't
    sell it to them. And so when they discarded them, they went
    into the dumpster and got them. And they had so much food left
    over, they had a banquet at the end for all their friends.
        The bottom line is, we waste an enormous amount of good,
    nutritious, healthy food that not only could feed hungry
    people, but, quite frankly, that could be utilized in our
    schools and in so many other places, and we need to fix this
    problem.
        And there is an environmental aspect to this too. Moving
    away from landfills, going into digesters and composting and
    feeding animals versus the way we are doing it with landfills.
        But, I come at this issue primarily from the hunger aspect.
    We have close to 50 million people in this country who are
    hungry. We should all be ashamed of that. And while what we are
    talking about here today is not a substitute for SNAP or WIC or
    other food and nutrition programs, clearly, getting good
    nutritious food to people who are struggling is really
    important.
        And so then we get to the infrastructure issues. I was on a
    panel with a farmer who, out of the goodness of his heart,
    brings his excess produce to the Food Bank of Western
    Massachusetts, but he didn't get any incentives. It is hard and
    he is a small farmer. I think a lot of people are faced with
    this. They don't have the labor force, or they don't have the
    refrigerated trucks to do the transporting of the food. And
    then even at food banks, there is a limited amount of
    refrigeration. You can talk about trying to get it to smaller
    stores or whatever, but they have a limited amount of
    refrigeration.
        In TEFAP we authorized $100 million for transportation and
    storage. We never funded at that. It was \1/2\ of that. So at
    some point we have to figure out a way to fund this.
        And, Ms. Aviv and Mr. Fink, maybe we could talk a little
    bit about the infrastructure challenges, especially when it
    comes to feeding the hungry in this country, and how do we
    piece together the funding? How much does it cost, how do we do
    this?
        Ms. Aviv. Gosh, I would have to get back to you on how much
    does it cost all together. We were hopeful that it would be
    funded at $100 million. I couldn't tell you whether $100
    million would solve the problem, but it would sure solve more
    of a problem that $59 million, and simply because the need is
    so great. And with 50 million people, or near 50 million people
    facing hunger in the United States, we have a big problem. And
    all of the food that we provide, which is well over 3.5 billion
    meals, is just a small part of what we are able to provide.
        The infrastructure is on two levels. It is what I mentioned
    before, the one side is the refrigeration and the
    transportation and being able to harvest it and to keep the
    food safe. The other side of it are the people who need to
    access this. In rural communities, it is much more difficult,
    but within the cities it is a problem as well.
        Mr. McGovern. Right.
        Ms. Aviv. We also have big challenges, when we get
    donations, there may be a whole lot of one item, and it may be
    nutritious, but not everybody can live on carrots alone. So we
    need diversity mixing centers and a variety of things that make
    it possible for people to have access to all of this.
        Mr. McGovern. Right.
        Ms. Aviv. I think that being able to harness more of the
    food that is going to waste would go a long way to solving the
    problem, but it wouldn't solve the whole problem.
        Mr. McGovern. Mr. Fink?
        Mr. Fink. Yes, I think that the good news is there really
    isn't that much capital needed on the infrastructure side in
    the grand scheme for the recovery standpoint, and it is needed,
    and we have all talked about a need for information technology
    and infrastructure, like refrigerator trucks and refrigerators
    at food banks, and places like that. In the grand scheme, that
    isn't a huge amount of capital. And you just even think, when
    we talk about Uber for food waste, and that is really, when you
    look about it, it is sort of infrastructure light in that
    perspective.
        The other point you mentioned is the environmental aspect
    and there is a large need for capital for composting and
    anaerobic digestion.
        Mr. McGovern. Yes. Yes.
        Mr. Fink. And that requires a significant amount of
    capital. I guess I will say that the private-sector is very
    interested in participating in that capital structure.
    Foundations and impact investors are very interested. So there
    is the opportunity for public-private partnerships. There needs
    to be some signaling from you all of what needs to be done, but
    there are very willing investors on the other side.
        Mr. McGovern. Thank you. Thank you.
        The Chairman. Thank you. The gentleman's time has expired.
        I would tell the group that we are working on getting a
    screening for our members and staff of Just Eat It and we will
    keep everybody posted on that so that all of us can have a
    chance to take advantage of watching that experience and seeing
    what we can learn from it.
        Mr. McGovern. Great.
        The Chairman. Mr. Crawford, 5 minutes.
        Mr. Crawford. Thank you, Mr. Chairman. And I thank the
    panel for being here today.
        I want to switch gears a little bit. We had an awful lot of
    pushback from schools, superintendents, teachers, parents,
    coaches, when the National School Lunch Program rules changed
    back, I think it was 2012. It was starting to being implemented
    that school year. And the complaint we got from school
    districts was just huge amounts of waste, where children were
    just not used to the menu items and so they would essentially
    turn up their nose at what they had been offered. The standards
    aside, the waste was one of the biggest issues. Superintendents
    are challenged by trying to take their food budget and cash
    flow with general funds. Anybody given any consideration to how
    you analyze food waste in schools, and what we might do to help
    alleviate that problem? Anybody want to comment on that?
        Ms. Broad Leib. I will say one thing briefly. I think there
    is really great opportunity in schools, both in the cafeteria
    and in the classroom. And a couple of people have alluded to
    other places where we have made a lot of progress and social
    change, and a lot of that is also things like smoking,
    recycling, where we actually talked about them in schools. So
    there is a really good opportunity to kind of point this out to
    kids.
        And then in terms of the cafeterias and the school
    lunchrooms, there is still some confusion, like so many things
    we talked about around liability protection, so there is
    opportunity within even the Emerson Act to really clearly, with
    guidance, say to schools here is how this also applies to you.
        USDA is doing good work on this. They have put out some
    infographics and information about opportunities to have
    sharing tables and donate food, but more can be done
    definitely.
        Ms. Gunders. I would add that the flipside of that, the
    more we can do to kind of get kids to eat their fruits and
    veggies, the less waste there will be. And so the solutions are
    the same. And there has been a lot of documentation of efforts
    like the farm-to-table work and marketing produce to kids, and
    some of those things that recipes that make the food taste
    good, so it is not just sort of veggies out of the can that
    look drab, or things like that. That can really help to both
    address waste as well as health and fruit and vegetable
    consumption. And also the ideas around share tables in schools
    is very opportune because you have these kids who are taking a
    full carton of milk because they have to take it, and throwing
    it straight in the garbage can.
        Mr. Crawford. Yes.
        Ms. Gunders. And that is just a shame and a huge waste. And
    there is real opportunity for guidance along with the funds
    that are delivered through the school program to really direct
    schools to allow for sharing of that food.
        Mr. Crawford. Mr. Oxford?
        Mr. Oxford. There is a new program in Texas called Brighter
    Bites, and it is a unique partnership between food banks,
    schools, and growers and packers, to provide 50 servings of
    fresh fruit and vegetables to students in at-risk schools for
    free. And this program introduces new products to children at a
    very early age, while providing educational materials to their
    parents on menu ideas for using them, and so forth. Ninety-
    eight percent of the parents reported that their children ate
    more fruits and vegetables while participating in the program,
    and 74 percent were able to maintain that increased consumption
    after the program ended.
        So as Ms. Gunders said, trying to increase the consumption
    of fruits and vegetables would be a big help.
        Mr. Crawford. Yes, ma'am.
        Ms. Aviv. Maybe our experience in other areas might be
    helpful here. We have a program that focuses on foods to
    encourage, and our experience is that, even though we might
    think that there are a whole range of foods, grains, and
    produce, and proteins that are healthy and good for folks to
    eat, it doesn't mean necessarily that they will lean into that
    if their life experience was different. And we have learned
    from the work that our food banks and pantries have been doing
    is that the way in which it is presented, the way in which it
    is talked about, the way in which it is approached makes a big
    difference. So simply putting it on the plate, if kids have
    never seen it before and adults for that matter, won't get us
    to where we want to go, but an education effort and
    encouragement, presentation makes a big difference. It is also
    true for people who walk into supermarkets, when it is
    beautifully presented they lean into it and want to do it. We
    need to apply it also in this area.
        Mr. Crawford. Indeed. Just as an aside in the time I have
    left, we actually had a hearing, this was back in my district,
    and collected a lot of comments to address the School Nutrition
    Program, and one of the most productive comments came from one
    of the moms on the panel who suggested that these programs be
    implemented on a gradual scale, that is, K-2, as opposed to K-
    12, and graduate that into implementation over time so that
    children grow into, as you suggest, making healthier food
    choices. Do you agree with that?
        Ms. Aviv. I am not an expert on whether that is the right
    age group, but certainly the notion of encouraging people and
    not forcing them, and making it a delightful thing to do rather
    than a required thing to do, is likely to succeed. The
    particular age I will leave to other experts.
        Mr. Crawford. Thank you. I yield back.
        The Chairman. The gentleman's time has expired.
        The gentlelady from North Carolina, Ms. Adams.
        Ms. Adams. Thank you, Mr. Chairman. And thank you all for
    being here. It has been really great testimony.
        But let me just take a moment to recognize my foster
    student from Greensboro, my home, Jamie Warton. If Jamie is
    here, if she will stand up.
        The Chairman. Jamie, thank you for being here.
        Ms. Adams. Thank you.
        Next week will be the 1 year anniversary of the Adams
    Hunger Initiative that I launched in the Twelfth District in
    North Carolina to raise awareness of the high level of hunger
    and food insecurity in the communities that I represent. North
    Carolina ranks ninth in the nation, and my district, first in
    the state in terms of food insecurity. So we have a serious
    problem and I have been concerned about that.
        But hunger is a consequence of not having a good-paying job
    that earns enough food to put on the table and to raise a
    family. And as some of you have mentioned today, developing
    food recovery as a business model will help local farmers stay
    in business, create jobs to help with the additional
    transportation and distribution of donated food to those who
    need it.
        My first question is to the North Carolinian on the panel,
    Mr. Oxford. Mr. Oxford, your testimony lays out several ways
    that your company and other members of the Produce Marketing
    Association are finding innovative ways to reduce food waste
    and to maximize the use of leftover produce within our nation's
    food system. So what support can both the public- and private-
    sector provide to farmers to educate them on opportunities and
    incentives to move more food products that are not destined for
    market to food banks?
        Mr. Oxford. Thank you, Representative Adams, and we
    appreciate your support here in Washington, D.C.
        We believe there is opportunity for greater education
    across the board. Our experience with L&M has been very
    positive in working with the Florida Association of Food Banks
    and the Feeding America program, and others. And ensuring that
    producers understand the options is helpful, but equally
    important in reducing food waste is educating consumers. We
    have already talked a little bit about some of the things, we
    have talked about the need to change behavior that one of your
    colleagues mentioned, and I think that is very critical if we
    want to make a real difference and move the needle here.
        Changing behavior in our sense is, speaking on behalf of
    the Produce Marketing Association, beginning that dialogue and
    trying to change behaviors starts at a young age. That is where
    we learn our habits and our values, and so forth. One of the
    things that the Produce Marketing Association has been involved
    with, including with the Partnership for a Healthier America
    and the White House as well, has been a program called Eat
    Brighter, and I should mention Sesame Workshop, which has
    provided their assets, their characters, for free to put on the
    packaging for fresh produce.
        So it is having a collaborative dialogue and getting more
    people involved is critical.
        Ms. Adams. Thank you.
        Ms. Aviv, several universities in North Carolina operate
    campus kitchens. These student-run organizations use university
    facilities to turn donated food into meals for those who need
    it. What Federal laws protect campus kitchens and food donors
    from liability? What recommendations would you make to
    encourage more farmers and food processors to donate unwanted
    food products to food pantries and feeding organizations?
        Ms. Aviv. Thanks for your question, and also for all of the
    work that you do in this area.
        As you know, the Federal Bill Emerson Good Samaritan
    Liability Protection Act, which we have talked about some
    today, quite a lot, makes it possible to provide protection for
    people donating fit and wholesome foods to a nonprofit
    organization, and it provides critical assurance of liability
    protection to donors. And while there may be some ways in which
    it can be strengthened, the big challenge that we face is that
    too many people don't know about it, including on campuses. And
    the degree to which we systematically educate people about this
    is the degree to which I think that we will be able to increase
    donations in a meaningful kind of a way.
        Ms. Adams. Okay. Would Feeding America support being able
    to use funds from the Emergency Food Assistance Program to
    directly purchase leftover produce from farmers?
        Ms. Aviv. That is a very complicated question because our
    experience is that, in fact, the TEFAP purchases right now,
    with TEFAP funds, we already do that, that is what we believe,
    and that we do it at scale, and that at this point in time, for
    us to change that, we are not sure that that would be the right
    way to go. But that said, there is an opportunity for us to
    take a look at how to do it with smaller donations, because we
    do this at scale, and we would be very happy to work with you
    and others to look into that.
        Ms. Adams. Well, thank you. I would love to do that.
        Mr. Chairman, I yield back. My time is up.
        The Chairman. The gentlelady's time has expired.
        Ms. Lujan Grisham, 5 minutes.
        Ms. Lujan Grisham. Thank you, Mr. Chairman. And thanks
    again for such a great panel, and highlighting that, we need to
    do more so that individuals and families are not so food-
    insecure in this country. And I make this statement at every
    hearing because until it is resolved, it hurts me every day to
    remind all of my colleagues and everyone who comes before this
    Committee that New Mexico is still one of the hungriest states
    in the country. And every single day I know there are children
    in my district and in the state who are some of the hungriest
    children in the entire country. And so the work that we do that
    leverages, that makes sure that we are encouraging, as you do,
    incredible private work, as well as our responsibility to
    change a variety of systems so that people really have the
    supports that they need to be food-secure, and to have all the
    other necessary basic issues addressed in their lives so that
    they can be successful.
        And I know that this question has been asked, we are
    limited in what we can really do and accomplish because for
    every donation, there is an issue about getting it picked up
    and storing it, and far too much money actually is needed to do
    that. And, in fact, I have a bill that says, look, let's put
    $100 million in so that we are not asking food banks to decide
    between having food available for their families or paying for
    the administrative, I am going to call it administrative, or
    the other structural issues, which is storing and transporting
    this food. So I know that that has been asked, what else can we
    do, but maybe the thing to do is, are there any private groups
    who are looking at. I hope I convince my colleagues to support
    my request to put more money in, to not be borrowing or
    leveraging in this way, to be very clear that we need to pay
    for transporting and picking up and storing foods. I actually
    have a situation in my district where we had to say no to corn
    because we let it spoil, because there was no way to go get it
    from the farmer who was donating it. There was no way for us to
    deal with it. Are there businesses or groups who are now
    looking at ways to maybe invest in the transportation and the
    storing, and the folks in the Feeding America environment that
    I can reach out to until we get this problem resolved, in my
    state in particular, in the Southwest region?
        Ms. Gunders. Well, I would say there are a number of
    burgeoning businesses that are kind of addressing that problem
    through a private-sector lens. So, for instance, there is a
    company called Imperfect Produce that just started in
    California, and in just a few months they have over 3,500
    people subscribing to their produce box, that is all kind of
    segments of produce. They offer it to people who qualify for
    SNAP at a reduced cost. So it is already reduced because it is
    imperfect, and then further reduced, and it is delivered to
    their door so you don't have the access issues. They don't have
    to go to a grocery store that may not be near them, et cetera.
    And they are getting basically $20 worth of produce for $5,
    also delivered to their door. So there are some private-sector
    solutions like that that are coming as well.
        Ms. Lujan Grisham. And I love that. Do you think that
    private-sector solution, do you--and I will ask them directly,
    so thanks for that heads-up. But, the challenges, and not that
    they couldn't figure it out in my state, it sounds like I am
    diminishing, but when you are not urban, it is much harder to
    make those deliveries. And in a state where we have the worst
    economy in the country, the folks able to really do that and
    successfully manage that business model, it has been really
    tricky. Do you see ways for really challenging states, rural,
    food deserts, not urban populations. If you are going to
    deliver a basket, you are going to drive 100 miles. Do you see
    ways and strategies that are being developed with really
    challenging environments like mine?
        Mr. Fink. Yes. You know, and I would say----
        Ms. Lujan Grisham. And I love that idea. Thank you to the
    panelists.
        Mr. Fink. Yes.
        Earlier we talked about modifying the standards for
    procurement, and especially in your state, and states nearby,
    there is so much that is grown and so much that is coming in
    from Mexico that is getting rejected because it doesn't meet
    the absolute perfect standard. And there is a real opportunity
    for less perfect fruits and vegetables being processed that
    they don't have to be shipped and refrigerated, they could be
    processed and then be shipped in a different form.
        And so, to me, there is a huge opportunity to take a look
    at all of the fruits and vegetables that either are left on the
    farm or are left somewhere in the supply chain, and do some
    value-added processing and then be able to turn them around
    into rural communities.
        Ms. Lujan Grisham. All right, I appreciate that. And I am
    already out of time, but I appreciate these ideas and the
    Chairman's continued patience with me. These are really
    important to feeding families in my district, Mr. Chairman.
    Thank you.
        The Chairman. The gentlelady yields back.
        I now turn to David Scott for closing comments on behalf of
    the Ranking Member.
        Mr. David Scott of Georgia. Yes. Well, thank you, Mr.
    Chairman. As I said, this is a very, very good hearing, and we
    accomplished a lot in this hearing. I hope we can take that
    away. I am particularly concerned, Mr. Chairman, I hope we have
    registered the point that we really have to get our farmers,
    get our agribusiness community to get before this Congress and
    share what is happening, and I really think because of our
    failure to deal with the immigration issue, from a labor
    economics issue, as it impacts food waste, which we see here,
    because they can't get the labor in the fields to get the food
    in the first place. And that is something we can do something
    about.
        And also, Mr. Chairman, as I mentioned, we need to
    coordinate a whole lot better with our food banks, and have
    this food wasting there when it could be beneficial to our food
    banks.
        So the pieces of this are right out there. We just have to
    reach out and grab it.
        And finally, changing that human behavior. And, Mr.
    Chairman, you mentioned to me a very good thing there when you
    whispered in my ear something that you all had a saying in the
    Army. If we took that to some television people and radio
    people, we could turn that into what, you could grab hold and
    educate people. Would you share that with us?
        The Chairman. Well, you are going through the mess line,
    and the mess sergeant would say take what you want but eat what
    you take.
        Mr. David Scott of Georgia. Take what you want but eat what
    you take. That could be a great commercial. That could be a
    great deal. And who better to get on television to say that
    than you. We say that across the country.
        But seriously, Mr. Chairman, we have to change that human
    behavior. And, hopefully, we have touched things on that.
        I thank the panel. I appreciate your coming.
        The Chairman. I too want to thank our panel. And I thank
    the gentleman for his comments.
        I want to thank our foster kids in the room. Thank you all
    for being here today. I hope this has been instructive and not
    just bored you to death. But we are talking about good stuff,
    and one of the more rare bipartisan exchanges we have had
    today, because I don't think we could find too many people who
    are in favor of food waste. It is a rare individual who would
    argue that case.
        I would also like to get into the record the fact that
    several of you mentioned the tax deduction and how important
    that was. You gave credit in the much-maligned omnibus bill
    that many of us on our side of the aisle just got beat to death
    because we were supportive of it, but it was actually in the
    tax bill, both of those were negotiated together, the same
    thing. So I appreciate you, those of us who were criticized for
    passing the omnibus bill. There were some nuggets of good
    things in there.
        I am also encouraged that we are trainable. Look how
    quickly we adapted to sneezing into our elbows. As soon as Elmo
    started doing it on Sesame Street, that blew up and we all now
    do that as a matter of course.
        We faced water restrictions in west Texas because of the
    drought. We asked people to turn their faucets off while they
    brushed their teeth. That became a habit and water use has
    dropped. It didn't change anybody's lives, but it helped a
    little bit at a time, every single day we went on.
        I want to re-announce that at 1:30 in this space we will
    have the Food Waste Fair. While we have booths manned by a lot
    of folks coming around to show the good work that has been
    going on, and to begin to highlight that. I do think their role
    for public service announcements and other things, they help
    people become more cognizant of it and just sensitive to the
    idea that we don't throw things away.
        One of those other sayings from my early youth that I am
    haunted by though is my mother would say, ``You need to be a
    member of the clean plate club.'' Well, that had mixed
    messages, because today, I eat too much and I am overweight,
    but as a child, my mother wasn't interested in us wasting food.
    So all these kind of things that we can be better at, and I am
    encouraged by that.
        I thank all six of you for coming here today, sharing. Ms.
    Gunders, you get the prize for coming the furthest from San
    Francisco, but we do appreciate all the work that you do. It is
    a collaborative work, and there are only winners in this deal.
    And this is something we should be able to get our arms around
    as we move forward.
        Again, I thank our witnesses for being here today.
        Under the rules of the Committee, the record of today's
    hearing will remain open for 10 calendar days to receive
    additional material and supplementary written responses from
    the witnesses to any questions posed by a Member.
        This hearing of the Committee on Agriculture is adjourned.
    Thank you.
        [Whereupon, at 11:57 a.m., the Committee was adjourned.]
        [Material submitted for inclusion in the record follows:]
        Submitted Letter by Robert Budway, President, Can Manufacturers
                                   Institute
    May 25, 2016

      House Committee on Agriculture,
      Washington, D.C.

    RE: Written Testimony of the Can Manufacturers Institute for the House
                Agriculture Committee Hearing On Food Waste from Field to
                Table, May 25, 2016.

        The Can Manufacturers Institute (CMI) appreciates this opportunity
    to provide comments to the House Agriculture Committee pertaining to
    the public hearing: Food Waste from Field to Table.
        CMI is the national trade association of the metal can
    manufacturing industry and its suppliers in the United States. The can
    industry accounts for the annual domestic production of approximately
    124 billion food, beverage and other metal cans; which employs more
    than 20,000 people with plants in 33 states and Puerto Rico; and
    generates about $13.3 billion in direct economic activity. Our members
    are committed to providing safe, nutritious and refreshing canned food
    and beverages to consumers.
        Cans help waste less food, save families and individuals time and
    money, and reduce their impact on the environment. In fact, Americans
    throw away approximately 15 to 20 percent of the fresh fruits and
    vegetables they purchase every year. And the amount of food waste rises
    to 40 percent for All foods. Cans are a part of the solution.
        Fresh fruits and vegetables are picked and canned within hours,
    providing safe, nutritious, quality foods for families and individuals
    to use all year long. This process not only prevents spoilage, but also
    eliminates food waste as any product that isn't canned is kept on the
    farm to feed the livestock and/or as fertilizer for crops. Canned food
    portion sizes are also just right for both individuals and families,
    and most recipes are designed around these sizes. The products packed
    in cans never require refrigeration, saving significant energy for
    producers, shippers, retailers and consumers.
        As for food waste, in general, the canned foods purchased today are
    good for at least 1 year. It's important to remember that ``best by''
    or ``use by'' dates on canned food have nothing to do with food safety,
    but rather food quality and when a product may pass its peak of taste.
    And, the metal can itself is 100 percent recyclable and 80 to 90
    percent of all steel ever produced is still in use.
        CMI appreciates the opportunity to submit comments in regards to
    the food waste issue. If you have any questions, please contact me at
    [Redacted] or at [Redacted].
                Sincerely,
                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Robert Budway,
    President,
    Can Manufacturers Institute.
                                   attachment
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     ______

        Submitted Statement by Jay Vroom, President and Chief Executive
                           Officer, CropLife America
        Chairman Conaway, Ranking Member Peterson, and Members of the
    Committee, thank you for the opportunity to submit written testimony as
    part of the Committee's hearing on food waste. I'm Jay Vroom, President
    and CEO of CropLife America, the trade association representing the
    crop protection industry in the U.S. I proudly come from a long line of
    farmers and maintain ties with my family's farm in Illinois.
        The problem of food waste is astronomic: the United Nations Food
    and Agricultural Organization estimates that saving just \1/4\ of the
    food currently lost or wasted worldwide would be enough to feed 870
    million hungry people.\1\ This past September, the U.S. Department of
    Agriculture and the Environmental Protection Agency (EPA) announced our
    country's first-ever national food waste reduction goal, calling for a
    50 percent reduction by 2030.\2\ Reducing this much waste will take
    engagement from stakeholders across the food production system,
    including growers.
    ---------------------------------------------------------------------------
        \1\ Food and Agricultural Organization of the United Nations. SAVE
    FOOD: Global Initiative on Food Loss and Waste Reduction: Key facts on
    food loss and waste you should know!
    (http://www.fao.org/save-food/resources/keyfindings/en/).
        \2\ U.S. Department of Agriculture. News Release: USDA and EPA Join
    with Private Sector, Charitable Organizations to Set Nation's First
    Food Waste Reduction Goals. (http://www.usda.gov/wps/portal/usda/
    usdahome?contentid=2015/09/0257.xml&navid=NEWS_
    RELEASE&navtype=RT&parentnav=LATEST_RELEASES&edeployment_action=retrieve

    content) September 16, 2015.
    ---------------------------------------------------------------------------
        As you examine where waste occurs, I encourage you to look at the
    farm level, listen to the growers and their needs, and consider the
    importance of crop protection products and biotechnology tools in
    decreasing food waste. Waste can be prevented starting from the field
    and continuing all the way to the consumer's home. An all-too-common
    occurrence throughout the food waste dialogue is the absence of the
    farmer's voice. As we build and improve systems that reduce food waste,
    it is imperative that we hear from growers and support their efforts to
    reduce food and crop loss. Growers are the ideal sources of information
    regarding what tools they need to fight threats to their crops and
    reduce food waste.
        Globally, annual food loss and waste stands at: 30% for cereals;
    40-50% for root crops, fruits and vegetables; 20% for oil seeds, meat
    and dairy; and 35% for fish.\3\ Notably, most food waste estimates do
    not include the amount of potential food loss, or crop loss, from
    produce that has not yet been harvested. For example, in a 2006 study,
    scientists from the Institute for Plant Diseases in Bonn, Germany
    estimated that pests alone could potentially cause the loss of \1/2\ of
    the world's wheat crops.\4\
    ---------------------------------------------------------------------------
        \3\ UN FAO, Key facts on food loss and waste you should know!
    (http://www.fao.org/save-food/resources/keyfindings/en/).
        \4\ Institute for Plant Diseases, Rheinische Friedrich-Wilhelms-
    Universitaet Bonn. Crop losses to pests. (http://
    journals.cambridge.org/action/
    displayAbstract?fromPage=online&aid=431724&
    fileId=S0021859605005708) The Journal of Agricultural Science, Volume
    144, Issue 01. February 2006, pp. 31-43.
    ---------------------------------------------------------------------------
        From the beginning of the growing process, farmers deal with crop
    loss due to a multitude of factors, including weeds and other pests.
    After crops are harvested, in both storage and in transport to grocery
    stores or production facilities, mold and rot can damage and degrade
    food, decreasing the length of its shelf life. Mold and rot continue to
    threaten food until it is finally preserved or consumed, making it all
    the more important for farmers to grow fruits and vegetables that are
    as robust as possible. Thankfully, farmers and others in the food
    production chain are successfully managing many of these threats
    through the use of modern agricultural technologies. And that fact
    means that were it not for farmers and the science-based technologies
    that they use, food waste today could be even worse than it is!
        The crop protection industry's mission is to reduce food waste and
    crop loss starting from the first planting of a seed. Both conventional
    and organic growers use crop protection products to prevent insects,
    disease, mold and fungus from destroying food in the field, in storage,
    and in transport to grocery stores. Crop protection products and other
    technological advancements including biotechnology also help prevent
    food loss during the processing and packaging stages of food
    production. Additional technologies in the commercial development
    pipeline will further help farmers reduce food loss beyond the farm,
    such as the development of more robust root systems that resist
    drought, and soil health research.
        When examining the issue of food waste, we also must consider the
    resources used to produce food, including water, land, energy, labor
    and capital. This past March, National Geographic reported that,
    ``Globally, a year's production of uneaten food guzzles as much water
    as the entire annual flow of the Volga, Europe's most voluminous
    river.'' \5\ On the farm, many of our nation's highly advanced
    agricultural methods have led to increased efficiency, preventing
    resource waste. Precision agriculture technologies allow growers to use
    inputs and resources more effectively, increasing productivity in an
    eco-conscious way.
    ---------------------------------------------------------------------------
        \5\ Royte, Elizabeth. National Geographic. ``How `Ugly' Fruits and
    Vegetables Can Help Solve World Hunger.'' March 2016. http://
    www.nationalgeographic.com/magazine/2016/03/global-food-waste-
    statistics/.
    ---------------------------------------------------------------------------
        Today, we ask you to ensure our nation's growers continue to have
    access to vital and necessary crop protection products. They are
    elemental to preventing crop loss and reducing further resource waste
    throughout the food production system. We are concerned that recent
    steps taken by the EPA, in regards to efforts to change pesticide
    policy abruptly, are in reaction to misinformed political activism and
    are not based in sound science. It is of the utmost importance that
    regulatory decisions balance risks and benefits using solid data.
        The successful reduction of food and crop loss, and therefore
    resource waste, in agriculture requires commitment from all
    stakeholders in the food production system. The pesticide industry
    continues to work on solutions to help farmers prevent loss and use
    resources more efficiently and sustainably. By doing our part at the
    beginning of the food production chain, along with farmers, we can
    increase the likelihood that nutritious food reaches your family's
    kitchen table.
        We are now starting up a project at CropLife Foundation to do more
    research on the role of modern technologies in reducing food waste--and
    also to help advance innovation that will bring even more solutions. On
    behalf of CropLife America and our member companies, I'd like to thank
    you for giving your time and attention to the serious issue of food
    waste. We look forward to working collaboratively to address this
    issue.
                                     ______

                               Submitted Question
    Response from Emily M. Broad Leib, J.D., Assistant Clinical Professor
            of Law and Director, Food Law and Policy Clinic, Harvard Law
            School
    Question Submitted by Hon. Ted S. Yoho, a Representative in Congress
            from Florida
        Question. The EPA food recovery hierarchy shows a continuum of
    preferred efficiency in food production. In the meat sector, we use
    advanced meat recovery techniques to ensure we capture the greatest
    amount of protein possible which might otherwise end up in rendering, a
    use much farther down on the EPA's hierarchy. How important is it to be
    efficient in the manufacturing link of the food chain with technologies
    such as advanced meat recovery?
        Answer. Dear Representative Yoho,

        Thank you for your interest in reducing food waste and recovering
    more food along the supply chain, and thank you for your question. I am
    not personally knowledgeable about meat recovery techniques, but agree
    that we should make sure to follow the EPA Food Recovery Hierarchy when
    making decisions about where to invest so that we keep food at the
    highest level on the hierarchy. Methods like Advanced Meat Recovery
    Systems, if done safely and in accordance with FSIS Directive 7160.3,
    is a promising place for investment of resources. Investments can and
    should be made to find similar areas that could also reduce loss in
    food trimming or processing of other food products.
                Best,

        Emily Broad Leib.

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